Menu
0

800-523-2319experts@tasanet.com

Articles

Dental Malpractice: Is there a Case?

TASA ID: 16998

Whether on the defense or the plaintiff’s side in dental malpractice allegations, there are key questions and considerations that underpin the validity of any claim. These include: What is the nature of the injury? Is the injury severe enough to bring litigation? What is the standard of care for the particular circumstances? Was the injury due to a violation of the standard of care? This article was written to help attorneys define the standard of care in dental malpractice cases, more readily evaluate if the standard has been violated and work more productively with their experts.  

At the time of this writing, the dental standard of care in the USA is a national standard and the same for all clinicians, whether general practitioners or specialists. While clinical training, educational, and continuing education levels vary widely, the general practitioner is expected to perform dental services with the caution, skill and prudence of a specialist. This said, in theory, the generalist is expected to treat more routine cases and the specialist, the more complex ones. For reference, the American Dental Association recognizes a number of specialties including but not limited to oral surgery, pediatric dentistry, prosthodontics (comprehensive full mouth reconstruction), orthodontics (braces), endodontics (root canals), periodontics (gum and bone health). 

One of the authors (RM) is an endodontist. Using endodontics as an example, a patient undergoing a root canal can and should expect that the evaluation, diagnosis, treatment planning, clinical procedure, and follow up care delivered by a general practitioner is that which a cautious, skillful and prudent endodontist would deliver. In part, this means practicing with a clinical and evidence base, as per the relevant and current dental literature. The standard of care is fluid, ever-changing and evolving to reflect new literature, technology and methodology. In short, what may have been acceptable technique in 1985  may not be in 2019-2020. 

Unsuccessful and unfavorable clinical results will occur.  Many phone calls from potential clients turn out to be just that, unfavorable results from a dental procedure. This said, if treatment is carried out in a manner appropriate for the given clinical circumstance, the standard is upheld. The converse is true. Using a clinical example, if a patient complains of a toothache and the appropriate diagnostic testing, clinical examination and history taking is not performed, the chances for misdiagnosis and clinical misadventure (starting a root canal on the wrong tooth for example) are high, because the patient’s chief complaint has not been duplicated. Such duplication of the chief complaint is essential and the standard of care. Alternatively, performing these important steps correctly and routinely insures more predictable treatment outcomes. 

To provide cautious, skillful and prudent care, in an endodontic context for example, the clinician needs training, experience, equipment and staff support. In endodontics, this equipment would include the availability of Cone Beam Computed Tomography (CBCT)—three dimensional radiographs, a surgical microscope—allows high power magnification and visualization, among a host of other high level and widely available technology and methodology. In essence, doing complex root canal treatment with the naked eye using two-dimensional radiography circa 1985 (without these two technologies at the disposal of the clinician), and/or discredited methodology (Formocresol, Sargenti paste—both contraindicated toxic substances) is below the current standard of care. Every specialty and aspect of dentistry has these types of optimal technologies and methodologies. The above is not to say that practicing without these and similar advances is necessarily below the standard of care, but the further away the clinician is from such utilization, the closer to negligence they may be, especially in the event of an injury. 

The above definitions notwithstanding, in the authors experience, several common scenarios reproducibly carry the indicia of malpractice. 

Limited diagnostic testing, no treatment planning, poor quality records. 

It is our experience, almost universally, dentists who are sued have grossly inadequate records. While a comprehensive review of what should be in a general dental record is beyond the scope of this article, it is noteworthy that a dental record should  include  but not be limited to, a written record of: the medical history with vital signs (updated periodically), written informed consent where indicated, charting of restorations, tooth decay, missing teeth, occlusion, temporomandibular joint (TMJ) status, cancer screening, the condition of the gum tissues and bone levels (including periodontal probings), disease and pathology in all forms (soft tissue and bone), a radiographic record that allows diagnosis in accordance with American Dental Association (ADA) standards, and a comprehensive treatment plan (including what options the patient was given, as well as that they were informed of the risks of non-treatment). 

Deviations from the initial treatment plan should be clearly detailed. Records of each appointment should also include, among other key details, affirmation of informed consent, review of the medical history, which materials were used, patient compliance, anesthesia given, and that post-operative instructions were given.  

Specialist records and general practitioner records will be inherently different in that specialist records tend to detail one specific treatment for which the patient was referred.  General dental records will, by definition, be broader in scope. This said, again using endodontics as an example, as a practical matter, the level of detail in the record of an endodontist is generally more exacting and comprehensive than the general dentist. An endodontic record should include, among other details, a diagnosis of the pulpal condition of the tooth treated, a diagnosis of the bone health at the root end (periapical diagnosis) and a description of the restorability and periodontal status of the tooth (i.e. its structural integrity, fracture resistance, degree of bone support, health of the surrounding tissues, etc), among other notes. 

The above detail stands in stark contrast to a record that details an entire procedure by only stating “Root canal #13. Amalgam filling.” Such a note is grossly inadequate. While a deficient chart note is not evidence of malpractice or actionable, it can become very important in later discovery if the defendant doctor did not note the injury and/or adequate treatment of the injury. With inadequate records, a valid question to the defendant doctor in this scenario is, “How can you testify as to what happened if your chart note does not detail the event and/or refresh your memory?”  Your expert can rapidly identify an appropriate record versus one with significant omissions. 

Chart note adequacy is one indication of the caution, skill and prudence of the clinician. It is atypical for there to be a poor-quality records and high-quality treatment and vice versa. Similarly, it is our empirical observation that handwritten records are correlated with a deviation from the standard of care and vice versa with digital records. While empirical we observe that handwritten records are often correlated with a lack of continuing education, investment in equipment and/or utilization of optimal treatment methods. 

Lack of informed consent and record keeping in cases of “scope creep”

When a patient initiates a relationship with a general practice, there should be a written general informed consent covering the common areas of the doctor patient relationship and office policies. When the patient is engaging in a specialty procedure, there should be a much more specific written informed consent detailing the procedure (at the specialty level). Specifically, for example, during an endodontic procedure, a written informed consent specific to that procedure, tooth, and clinical situation should be obtained before the procedure is initiated and/or the patient is under the influence of any mood-altering medications (oral or IV). This informed consent should, among other things, detail the procedure, alternatives, risks of the procedure and show that all the patients questions were answered in advance of the treatment. 

This is clinically relevant because in general practice it is relatively common to have decay, which, once removed during a routine filling, is found to be closer to the nerve than expected (a possible indication for endodontic therapy). Proceeding immediately into a root canal and without taking other appropriate clinical measures (placing a rubber dam covering for throat protection, among others), with the patient laying back in the chair and unable to give adequate informed written consent, is the harbinger of a possible clinical misadventure and below the standard of care. 

When looking at a potential dental malpractice case from the plaintiff’s view, if the only wrong is lack of informed consent, this is inadequate to continue with litigation.  

Morbidity in a clinical outcome which would not be normally expected from the procedure

Plaintiff’s attorneys are looking for why a routine procedure caused the patient injury and where the dentist went wrong.  Again, negative clinical outcomes happen every day but are not proof of a deviation of the standard of care.  The possible clinical outcomes from any given procedure are infinite given a wide variation in anatomy, clinicians, methodologies, materials, etc. This said, utilizing technology, methodology, equipment and instruments in a clinically acceptable manner vastly increases the chance for clinical success and reduces morbidity. 

The converse is true. For example, lets evaluate how an abscessed tooth can become a hospitalization with dire consequences (a real life example).  If a tooth is abscessed (infected with a non-vital nerve/pulp), the patient is visibly swollen (has pus surrounding their tooth) and a numb jaw from the swelling, almost no endodontic specialist under these circumstances would attempt to finish their root canal procedure in one visit. An endodontist would open up the tooth, place medication inside, possibly perform incision and drainage and bring the patient back once the swelling and numbness resolved to complete the procedure. 

Alternatively, to finish a root canal in one visit under these clinical conditions, could easily  exacerbate the infection and land the patient in the hospital with a potentially life-threatening condition. 

As above, your expert can rapidly ascertain if the clinical action taken was within the standard of care for the given clinical circumstances. 

Lack of communication and adequate patient management

While poor communication and patient management are not in and of themselves below the standard of care, they are virtually “co-tango” with dental malpractice. In our experience, it is virtually universal that the patient who has lost trust in their dentist and where the dentist did not respond in a communicative, compassionate, empathetic manner, is much more likely to bring some kind of action or claim against the dentist. Those actions could be insurance claims, dental board complaints, or even complaints on social media.  In many, if not all of the cases we have evaluated, the patient has expressed their dissatisfaction with treatment at an early stage before filing the suit and made a request for remediation (refund, retreatment, referral, etc) and been rebuffed (unwisely) by the dentist. 

For an attorney; however, that the dentist is unpleasant or has poor bedside manner is not enough to bring a lawsuit.  But lack of communication between the patient and dentist can help establish the causal link between the injury and the deviation of the standard of care by showing the dentist was distracted, had poor organizational skills, or was not keeping up with the standards expected of a specialist doing specialist work.  It is the opinion of one author (RM) that if a suit has not been filed, but has been threatened by the patient, that optimally the dentist simply refunds the money, refers the patient, and/or retreats the case at no charge to avoid litigation. 

Figure 6: Sodium hypochlorite, (bleach used for root canal disinfection) was extruded beyond a  tooth during  root canal treatment, causing severe extra oral swelling. 
And finally, we have also empirically observed a greater number of claims made resulting out of treatment in corporate settings relative to private dental offices. This is puzzling.  Despite the rise of corporate dentistry (DSO’s, Dental Service Organizations) over the past several decades, the majority of dental care, in the United States is delivered in private offices and not large DSOs. Given the larger number of private practices, one would think this would be the larger source of claims, but in our experience,  this has not been the case. In the cases we have reviewed, records, digital or handwritten, produced out of DSO or larger multi-doctor clinics has generally not been adequate. 
This article was written to help attorneys evaluate the merits of their cases. It is hoped that the information contained, in conjunction with the utilization of relevant experts can provide a robust defense against meritless cases and alternatively provide the patient who has suffered injury and seeks damages to heal and move forward. We welcome your feedback. 

About the Authors:

TASA ID#: 16998 graduated from Northwestern University in 1985 with a DDS degree and completed his endodontic residency at the Oregon Health Sciences University in 1991. He has been in clinical practice continuously since graduation. An expert witness providing expert consultation, written case evaluations and narratives, and testimony. He has lectured nationally and internationally and is widely published in dental trade magazines. In addition, he has been a consultant and key opinion leader a number of  endodontic companies. 

Elizabeth E. Welch is the owner of Elizabeth Welch Attorney at Law, where she focuses her practice in plaintiff’s personal injury. She is admitted to the Oregon State Bar; Oregon Trial Lawyers Association; American Association for Justice, and Multnomah County Bar Association. She is a past treasurer of the Multnomah Bar Association and past board member of the Oregon Trial Lawyers and the Multnomah Bar Association. Ms. Welch graduated from the University of Georgia and earned her J.D degree from Lewis & Clark Law School. She can be reached at eew@northportlandattorney.com. 


TASA Article Disclaimer

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA and the author TASA ID#: 16998. Contact marketing@tasanet.com for any questions.


 

Previous What Can a Literary Agent Do for You?
Next Chemical Suicide Dangers for First Responders
Print
Tasa ID16998

Name:
Email:
Subject:
Message:
x

Categories


Let Us Find Your Expert 

Note: This form is to be completed by legal and insurance professionals ONLY. If you are a party in a case that requires an expert witness, please have your attorney contact TASA at 800-523-2319.

Submit

Search Experts

TASA provides a variety of quality, independent experts who meet your case criteria. Search our extensive list of experts now.

Search Experts

Testimonials

  • I think it's always good to have access to experts when [TASA] make[s] the process so easy."

    Scott McIntosh, Lewis McIntosh & Teare, Royersford, PA

  • As a busy practitioner, managing a sizeable caseload, I can use all of the help available to me. If I can outsource a task, particularly one as important as securing a qualified expert, I will jump at the opportunity. I use TASA in nearly every case where I need to find an expert witness, be it an engineer, an architect, an economist, etc. They have thousands of qualified experts to refer in virtually any field. Best of all the process is extremely simple. When I need an expert I simply contact TASA, whose knowledgeable representatives ask you targeted questions about your case, your legal theories, and your goals, in order to find the right expert for your case. I usually receive CVs and calls from the potential expert within hours. If you find the originally selected person is not a good fit – for whatever reason – TASA will work with you to find the right person. I would happily recommend this service to any attorney."

    Patrick K. Gibson, Gibson & Perkins PC, Media, PA

  • Ms. Darlie I. McDonald RN was awesome on the witness stand, and we prevailed in our case to the tune of  [a] (highly unusual [amount] for a medical malpractice [case] in our area).  I'd highly recommend her."

    Shane Reed, Shane A. Reed Law Office, Jacksonville, OR

  • I appreciate your inquiries and offers of assistance as well as the consistently high-quality, well-organized, and erudite TASA webinars, which invariably have excellent presenters."

    Maurice S. Kane, Cummings McClorey Davis Acho and Associates PC, Riverside, CA

  • Steven Kursh was an outstanding technical expert on our ecommerce IP lawsuit. He completed a massive amount of work on extremely complicated material, in a very short period of time. His work product was first rate and I think he would have done a terrific job if the case proceeded to trial. He is very articulate and helped us. I only wish we had gotten him involved sooner in the litigation."

    Daniel J. Brown, Reiss Sheppe LLP, New York, NY

  • I thank you all for the response to my request for an expert witness...Both Mr. Scott and Mr. Bianchi appear to be well-qualified for this case, but we have hired another expert. As always, I was impressed by TASA's ability to produce exceptionally well-qualified candidates with great speed."

    John Thomas Dzialo, The Law Offices of John Thomas Dzialo, Santa Ana, CA

  • Thank you for your quick response and the names of the two proposed experts. The situation that gave rise to our search for these experts has resolved and we will not need to retain them. However, we will continue to keep TASA in mind as these needs arise from time to time as your breadth of coverage for experts of all types is unparalleled, in my experience."

    Bart W. Brizzee, County of San Bernadino, San Bernadino, CA

  • I have used TASA for the last five years for locating an expert for many personal injury cases. On each and every occasion, TASA was able to find me more than one qualified expert. With such a variety of experts, I was able to select one who met my client's needs in prosecuting these claims. I found the experts TASA referred not only qualified, but available on a moment's notice. Your fees are reasonable and fair, and I will continue to use TASA for the remainder of my career."

    Robert Oushalem, Esq., The Law Office of Robert Oushalem, San Jose, CA

  • I recently used TASA for the first time to locate an expert to testify in a case requiring rather unusual expertise and where there were no applicable regulations or standards for guidance. TASA referred an expert in California who was everything a lawyer looks for in a forensic expert. He was promptly available for consultation, efficiently prepared for deposition and trial and very persuasive and credible with the jury. TASA's administrative services and assistance in locating this expert were excellent, and we would certainly use both the expert and TASA in the future."

    Theodore Phillips, Miller Hauser Law Group, LLP, Placerville, CA

  • TASA has always given me first-class service, but in a recent matter, TASA found the 'needle-in-the-haystack' expert witness we feared didn't exist. We needed an expert for a very narrow and limited issue in a very narrow and limited industry. Because TASA has an extensive expert witness database, it was able to give us a referral almost on the spot. It's why I always turn to TASA first."

    Kathleen A. Herdell, Law Offices of Kathleen A. Herdell, St. Helena, CA

  • There are numerous companies that provide litigation experts. However, I always choose the TASA Group because of their quick response in finding a qualified expert for my particular case. I have extreme confidence in the TASA Group and will continue to use their services in the future."

    Katie A. Killion, Esq., Chiurazzi & Mengine, LLC, Pittsburgh, PA

  • I spent hours trying to locate an expert in a very technical case involving a defect in a medical device. I could have saved a lot of time by calling TASA first. Within hours, I was supplied with the name of an engineer who had more than 30 years of job training, education and expertise in the precise area involving the device. Bravo TASA!"

    Timothy W. Peach, Partner, Peach & Weathers, San Bernardino, CA

  • We were involved in a case pending for more than five years with seven parties from three states. Three mediations failed before we looked to TASA for an expert. TASA referred an expert who clearly understood the complexity of the project and could effectively support his opinion. If it weren't for his expert advice and deposition testimony, the case would not have settled. Interestingly, the case settled within 90 days from the date this expert began."

    Renee Colbert, Esq., Corporate Counsel, W.G. Tomko, Inc., Finleyville, PA

  • Using TASA to find experts for defending our client in a negligent homicide case ended up being one of the most important decisions we made in trial preparation. The experts they suggested were exactly what we needed for the case. I truly did not expect to find experts that would be such a perfect fit for the nature of case. TASA provided us with highly qualified experts in somewhat narrow fields of expertise. A large percentage of our victory is due to the experts recommended by TASA."

    Marta Farmer, Esq., Carl S. White Law Office, Haver, MT

  • I have used TASA's services since the 1980's and have never been disappointed. TASA is indispensable for locating that hard-to-find expert. TASA representatives have always been courteous and pleasant, with the attitude that they cannot do enough to help. I expect to continue using TASA throughout my career."

    Brad W. Greenberg, Esq., Smyth Law Offices, P.C., Brockton, MA

  • I needed to retain a multitude of scientists from a variety of disciplines for a complex litigation. Initially, I went through a series of interviews with an extremely knowledgeable and professional team of TASA advisors. They were able to find highly qualified experts in the specific fields, all of whom turned out to be superior in qualification and area of expertise to my adversary’s experts. I am a TASA believer!"

    Nooshin Namazi, Partner, Nicoletti Hornig & Sweeney, New York, NY

  • TASA always comes through in the difficult IP cases. Their representatives work with you to refine the search criteria and quickly send you a list of very qualified experts."

    Timothy L. Boller, Principal, Seed Intellectual Property Law Group, PLLC, Seattle, WA

  • Special thanks to our TASA referral advisor for her quick response to our initial request—we were extremely happy with how fast TASA was able to assist us! Your group does excellent work, and it is always my first stop when looking for an expert."

    Susanne K. Sullivan, Senior Attorney, Southwest Airlines Corporation, Dallas, TX

  • When we needed an expert in a patent infringement lawsuit, we turned to TASA. We were looking for a witness qualified in two unrelated technical areas, and TASA worked with us to identify and refine our requirements. TASA performed well, promptly providing us with several excellent candidates to consider, one of whom we retained."

    Joseph T. Miotke, Partner, IP Practice Group, Michael Best & Friedrich LLP, Milwaukee, WI

  • Our team had a very positive experience with TASA. The Expert was professional, efficient, and certainly an expert in his field. His work and testimony contributed to a winning decision for our client! We will recommend the Expert and TASA whenever appropriate."

    Stephanie Sprague, Esq., CT

  • (The Expert) WAS A PERFECT FIT for my case: qualified, competent, easy to work with, attentive to detail, knowledgeable, smart, communicative, enthusiastic, resourceful—have I left anything out? I highly recommend TASA and would be happy to share my experience with anyone else. Thank you!"

    Michael Porrazzo, Esq., The Porrazzo Law Firm, Mission Viejo, CA

  • The expert was very thorough. TASA was quick to respond with an answer to my request. I have used TASA in the past under various other law firms and have been pleased. TASA continues to live up to expectations and then some."

    Anne Desormier-Cartwright, Esq., Jupiter, FL

  • Your organization found us an appropriate expert witness in less than one day. This was excellent service. The expert you found was excellent and a pleasure to work with."

    William A. Ehrlich, Esq., Allentown, PA

  • (The Expert)…accomplished exactly what we wanted. TASA was very prompt and efficient in locating him. All fees were reasonable."

    J. Michael Lehman, Esq., Bruce, Bruce, & Lehman, Wichita, KS

  • We needed an Internet expert right away to meet a deadline. One phone call to TASA, and in less than a day, TASA called back with a list of 8-10 experts who were exactly what I needed. The TASA expert I chose knew the business and mechanics of the Internet so well—he was a PhD and professor who had written a book on the subject—that he put the fear of truth in the defendant that caused him to settle. When I get the kind of service that I did from TASA, I stick with it and use it again and again."

    Philip Green, Attorney at Law, Green and Green, San Rafael and San Francisco, CA

  • Excellent—in a word. I just do not have the time to hunt for experts. (The Expert) was fantastic. Thank you for providing such a quality service."

    Francesca Carinci, Esq., Steubenville, OH

  • TASA stands for Tops At Serving Attorneys. It’s always rewarding working with TASA."

    Marshall A. Bernstein, Esq., Philadelphia, PA.

  • That was, however, one of the best and most interesting webinars I've seen in the last few years.  Thank you for hosting it and introducing me to such a knowledgeable and caring person." - Referencing the Medicolegal Consequences of Post-Traumatic Stress Disorder in Civilian and Military Populations webinar. 

    Lori Bauer Apodaca, The Law Office of Lori Bauer Apodaca, Los Lunas, NM 

  • I needed a dental malpractice expert to assist me in a complex negligence claim. The very able staff at TASA had no difficulty identifying a knowledgeable professional who rendered a reasonable opinion in support of the case, which aided our client in receiving a fair amount of compensation. I am grateful to TASA for its invaluable assistance!"

    John Hermina, Hermina Law Group, New York, Pennsylvania, Maryland & Washington, DC

  • For many years I have relied upon TASAmed to provide excellent medical malpractice experts. As a sole practitioner, I find it reassuring to know that a seasoned expert is just a call away. Usually, TASAmed has found just the right expert in a day or two. The support and guidance I receive from TASAmed is a vital part of my law practice, and I have come to expect both great service and high rewards from my TASA cases."

    Thomas J. Massey, The Thomas J. Massey Law Firm, Fallbrook, CA

  • The caliber of physicians that TASAmed has referred to us is superb. Prior referral groups used the same experts over and over again. With TASAmed I have access to experts all over the United States. I’m not limited to the same experts. The TASAmed staff is easy to work with and very professional, with an established track record. When I call for a medical expert, I’m called back the same day, and I often have an idea of what expert will be contacted before my first call is completed."

    Kari Alexander, Certified Legal Nurse Consultant, Texas

  • We hadn’t been able to find the medical expert we needed, and, frankly, I didn’t think we’d find one in that field. TASAmed was able to find us an expert with the exact expertise and medical experience we needed. Your referral advisor was very helpful and found our expert in one day."

    Kurt Osenbaugh, Partner, Alston & Bird, Los Angeles, CA

  • TASAmed’s service was prompt and efficient in connecting us with the right person. The expert was so cooperative and helpful. With how challenging it is to find a narrow area of medical expertise, it’s extra helpful to have your TASAmed pool to plug into instantaneously."

    Greg Roosevelt, Esq., Law Office of Greg Roosevelt, Edwardsville, IL

  • TASAmed has connected me to credible experts in four medical cases just this year. TASAmed and the referred experts respond quickly, the fees are reasonable, and the referrals are well tuned to the fields I request. Since the experts are already associated with TASAmed, they are comfortable having substantial conversations about the case, both before and after record review."

    Martin A. Cannon, Esq., Cannon Law Offices, Crescent, IA

  • I have used TASAmed a number of times and have always been happy with your give-and-take timeliness. Once I requested a medical expert in a particular field, but, after speaking with your referral advisor, we concluded that an expert in another field would be more effective. That same day, I spoke to two experts the advisor gave me, and I retained one."

    Mark A. Lope, Esq., Lope and Honlihan, Butler, PA

  • Very close to the time of trial, the TASAmed advisor quickly referred me to several experienced ER trauma physicians to review medical records and prepare me for cross-examination. After selecting my expert, I over-nighted records for review, and the doctor found valuable information for my client's defense. Thank you, TASAmed, for this timely, specific, valuable referral."

    Charles Morgan, Esq., Law Office of Charles L. Morgan, Jr., Charlotte, NC