3.2

June 6, 2023

Reading time: 1 minutes

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In this case study, oral and maxillofacial surgeons (OMS) will examine how a documentation error and failure to clinically verify a biopsy site led to wrong site oncologic surgery and malpractice claims. The case highlights the importance of obtaining clinical clarity before procedures.

Key Concepts

Preventing wrong-site surgery through pre-procedure precautions
Vicarious liability for documentation errors
Pure consent to settle clauses in malpractice policies

Background Facts

T, a 71-year-old man, was a retired carpenter, with a history of well-controlled hypertension and chronic, episodic sinusitis, and having smoked at various times in his life, as much as a pack of cigarettes a day. He visited his dentist, Dr. D, at irregular intervals and never wanted to establish a big-picture treatment plan. At his most recent visit, Dr. D noted a course, irregular white area at the buccal mucogingival junction around teeth #29-31. Not feeling comfortable making a provisional diagnosis, Dr. D referred T to a periodontist, Dr. O, to evaluate the area and treat as needed. Dr. O performed an incisional biopsy of the area and sent it to an oral pathologist, Dr. H, for histopathological assessment. The lesion was read out provisionally as atypical epithelial proliferation, but Dr. H asked for a larger sample to be able to make a more definitive diagnosis.

Dr. O took a second specimen from an immediately adjacent site. Due to a clerical error, Dr. O entered into the chart that this specimen had been taken from the "lower left buccal gingiva," with her dental assistant repeating that error on the pathology request form that was forwarded to Dr. H with the tissue. After microscopically examining the specimen, Dr. H diagnosed it definitively. The report from Dr. H to Dr. O read "squamous cell carcinoma, moderately-to-well differentiated, lower left buccal gingiva," the latter aspect having been copied by Dr. H, exactly from the requisition provided by Dr. O's office with the most recent submission.

Upon seeing the words "squamous cell carcinoma," Dr. O immediately referred T to a double-degree oral and maxillofacial surgeon, Dr. M, who had head-and-neck surgery fellowship training, for evaluation and treatment, giving T a copy of the biopsy report to take with him. Dr. M reviewed Dr. H's report, examined T, noting a small lesion on the buccal aspect of teeth #30-31, and explained to T that he would need a PET scan to determine whether there had been any spread. Presuming no such spread, Dr. M advised T that the lesion could be successfully treated by surgery alone, specifically a marginal mandibulectomy and a limited neck dissection. The lesion had not spread, per the PET scan and other modalities, so the stated plan would go forward. T agreed and surgery was scheduled at a regional medical center.

On the day of surgery, T waited in a pre-surgery room, where his medical history was reviewed and identification was checked. A consent form stating the procedure to be "removal of portion of lower jaw, and neck dissection" was signed by T and witnessed by a nurse. Dr. M said a brief "hello" to T before changing into scrubs and entering the operating room, where T was already on the table. Dr. M asked the anesthesiologist to proceed.

Dr. M had taped Dr. H's biopsy report to the OR wall, read it again, and prepared to make an extraoral left submandibular incision, through which he would both remove a mandibular segment and perform the limited neck dissection. Technically, the procedure went forward uneventfully, with T then transferred to the post-anesthesia care unit. T's wife was brought in to see her husband while Dr. M was still there, dictating his operative note. She was aghast to see that surgery had been performed on T's left side, when she knew that the cancer was on the right. When she confronted Dr. M on the spot, he said, "here's the biopsy report, read it for yourself."

Shortly after T's initial surgical recovery, another surgeon treated T, this time correctly operating on the right side of T's face and neck. T suffered emotionally, to the extent that he sought and obtained psychological counseling, but he was never able to comfortably eat or drink, or otherwise normally function orally again. He required and received reconstruction bilaterally, but he always found it to be very compromised and esthetically unacceptable.

Legal Action

T retained a seasoned attorney, who collected all records and obtained opinions from a general dentist (like Dr. D), a periodontist (like Dr. O), an oral pathologist (like Dr. H), and an OMS (like Dr. M). The general dentist saw no liability on Dr. D's part, as he had immediately made an appropriate referral. The oral pathologist similarly found no liability as to Dr. H, reasoning that oral pathologists in biopsy situations do not assess the patient clinically. They simply diagnose what they see microscopically, which he did accurately, and report the findings regarding the site that was conveyed on the requisition it had come from.

The conclusions as to Drs. O and M were quite the different. The expert periodontist stated his view of Dr. O's negligence succinctly: Dr. O's recording error which incorrectly stated the location of the lesion to be examined was inexcusable, and it served to set the entire cascade of events into action, resulting in wrong-side surgery having been done. The oral surgery expert was deeply critical of Dr. M, claiming that he failed to clinically correlate the location findings on a biopsy report with the patient's actual condition, and then compounded the situation by being unwilling to address his error, thereby violating his duties, both surgically and ethically. In short, said this expert, Dr. M failed to do the most basic tasks, namely double checking the intended surgical site before performing irreversible, life-altering treatments.

Substantial settlement amounts were paid to T on behalf of both Dr. O and Dr. M. Additionally, Dr. M was sanctioned by his State Board.

Takeaways

Wrong-site treatment, including surgery – whether, as here, relating to the side of the mandible to be removed, or extracting a first bicuspid instead of an orthodontically planned-for second bicuspid, or endodontically treating a healthy lower molar instead of the diseased tooth next to it – has permanent effects, which are virtually always preventable. Pre-procedure techniques can be, and routinely are, employed that will stop this type of error from ever taking place, such as taking a time out for confirmation, marking the side/site of surgery, having two people independently confirm what is to be done, clinically correlating a result document (such as a biopsy report) with an actual finding, and having an open, no-consequences policy that encourages office staff to voice any concerns before a potential untoward event begins. The old "a stitch in time" adage is never more applicable than in pre-procedure risk protection.

One of the most frequent case types now seen in malpractice claims is a practitioner performing treatment where it was not intended to be, and the trend appears to be growing. While the reasons for that are simply theories, a common-sense approach is that such events might well be driven by a focus on the number of patients seen and procedures performed. In reality, the amount of time needed before a procedure to assure correct patient, correct site, correct procedure is nominal in comparison to the amount of time that most procedures take. But even if a practitioner or an office is measurably slowed down to achieve those assurances, obligations to patient safety warrant those delays.

This case highlights the consideration of responding to patients and their family members when results are not as planned or expected, when complications come to pass, or, as here, when errors are immediately obvious. It would not likely have changed the ultimate course of legal events had Dr. M responded to T's wife differently, because the negligence was so clear and significant, but it might have reduced the likelihood of a Board complaint being levied against him. Evidence to support that theory lies with the fact that no Board complaint was filed against Dr. O.

The pathology request form sent to Dr. H with the second specimen taken by Dr. O was completed by Dr. O's dental assistant, who wrote the requisition form. By way of a concept known as vicarious liability, what the dental assistant wrote is the functional equivalent of Dr. O having written it herself. The assistant's error, whether copied from Dr. O's own transcription error or not, becomes Dr. O's error as well. All that is delegated comes back to the delegator, so double-checking of even such a seemingly unimportant task is critical for liability protection and for patient protection.

As a background fact, both Dr. O and Dr. M had professional liability ("dental malpractice") policies with "pure consent-to-settle" provisions, meaning that no settlement could have been reached without their agreement to do so. Such a provision means that a practitioner can demand that a lawsuit brought against them be tried in court before a jury, regardless of how strong the evidence of wrongdoing might be. For every case, practitioners are counseled by their attorneys regarding the pros and cons of settlement versus trial, with the potential implications of both fully set out on the table.

Finally, we note that, simply for purposes of brevity, some details, which were not relevant to the risk management issues discussed, were omitted. This is particularly the case regarding the pre-surgical work-up phase of care, secondary criticisms addressed by the experts, and the documentary and testimonial evidence before the State Board. Their absence should not be construed as necessary but missing pieces.

Summary of Takeaways

Wrong site surgery remains a leading and largely preventable source of malpractice claims.
OMS are accountable for errors made by delegated staff, even when those errors were unintentional.
Simple confirmation practices before irreversible procedures can prevent patient harm and legal consequences.

Note that this case presentation includes circumstances from several different closed cases, in order to demonstrate certain legal and risk management principles, and that identifying facts and personal characteristics were modified to protect identities. The content within is not the original work of MedPro Group but has been published with consent of the author. Nothing contained in this article should be construed as legal, medical, or dental advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your personal or business attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.

This real life case study reveals how limited 2D imaging can lead to missed anatomic details and patient complications. See how incorporating 3D imaging may help strengthen diagnostic accuracy and reduce malpractice risk in your oral and maxillofacial surgery practice.

Key Concepts

How imaging choices influence malpractice risk
Why expert opinions on imaging often differ
Key differences between 2D and 3D imaging

Background facts

Dr. P practiced restorative dentistry in a suburban community since her completion of dental school and a general practice residency. During her formal training and after, she engaged in didactic and clinical coursework involving implant placement and restoration, and regularly recommended and employed dental implants in her treatment plans. That was the case when a new area resident, O, a healthy man in his 40s, presented for general care and consideration for replacing missing tooth #30, which was extracted years ago following a trauma-induced fracture.

O's mouth was in generally good repair, as he practiced good home hygiene and had been a regular dental patient for his entire adult life. Dr. P discussed the replacement options of a 3-unit fixed bridge and an endosseous implant, upon which a single crown would be placed. After taking and viewing a panoramic radiograph, Dr. P advised O that he had "plenty of bone" to support an implant, and she suggested that approach. The costs were similar, so O opted for the implant plan. Dr. P advised O of the usual risks of implant surgery, including a nerve injury which could even be permanent in "rare" situations. O agreed to go forward and set up an appointment within the next few weeks.

At the surgical visit, a chairside assistant presented O with a document entitled Implant Consent Form, telling O that this was exactly what Dr. P had discussed with him. O quickly perused the form and signed it. Based upon measurements she made on the panoramic film, Dr. P determined there to be 14.5 mm of mandibular bone superior to the inferior alveolar canal (IAC), so she planned for and placed a 13 mm fixture. Upon elevating a gingival flap, Dr. P noticed that the lingual height of bone was "a good deal" higher than on the buccal aspect. Other than O briefly wincing toward the end of the preparation phase, all went smoothly, with the implant covered with soft tissue and sutured. A post-placement periapical radiograph showed the implant in very close approximation to the IAC, but Dr. P saw "daylight," so she was not concerned.

One week later, at the suture removal visit, O complained of "pins and needles" and "numbness" on the right side of his lower lip and chin; Dr. P stated that she remained "unconcerned", explaining that this is common and all should be back to normal over the next weeks or months. O returned for crown placement 5 months after implant surgery, still with the same "annoying sensations". Dr. P was surprised that the situation had not normalized, but she continued to reassure O of a return to normal. That never came.

Legal action

O always found the tingling and numbness to be uncomfortable, but he never thought to do anything about it until he met up with a college classmate of his, now an attorney, at an alumni event. The classmate did not practice law where O now lived, but suggested that he consult with an attorney he knew who did "a lot of malpractice work". O met with that lawyer, who gathered all of Dr. P's records and sent O to a local neurologist to assess the extent of the injury: the neurologist confirmed that O's mandibular nerve was, in fact, injured and did not conceive of any improvement, now nearly two years after the surgical event.

O's attorney contacted an experienced dentist whom he knew, who had testified in dental malpractice cases in the past, and who, like Dr. P, regularly placed and restored implants, seeking to retain that dentist as an expert on behalf of O. Following a review of the records, the expert reported back to the attorney that, in his opinion, Dr. P had deviated from the standard of care, which in the expert's view required the use of CBCT radiography in order to accurately determine available bone for implant placement. The expert cited specifically to Dr. P's intraoperative finding of a sloped mandibular crest, which could not have been determined on the 2-D panoramic but would have been seen on a 3-D CBCT, had one been taken. The expert added to that opinion the concept that, once Dr. P noted that lingual-to-buccal slope, she should have immediately stepped back and reconsidered whether the planned-for 13 mm implant was appropriate, which it ended up not being, as the measurement was based upon the highest point of the crest, rather than lower points on that slope, which were closer to the IAC.

The attorney quickly filed suit against Dr. P, as the statute of limitations was approaching. Dr. P contacted her professional liability carrier, which assigned defense counsel to Dr. P. O's attorney voluntarily shared his expert's report with defense counsel, hoping to demonstrate a strong basis for an early settlement. But, defense counsel retained its own expert, who opined that the standard of care allowed for 2-D panoramic films for the purpose of implant planning, although acknowledging a deep split within the dental profession, with some dentists and organized dental groups asserting that (exactly because of anatomic situations as Dr. P found) 3-D studies were required prior to posterior mandibular implant placement, with other dentists and dental groups agreeing with this defense expert's stance. In part, the latter view is supported by the statistical fact that, according to recent assessments, only 29% of U.S. general/restorative dentists have on-site CBCT availability, with less than 2/3 of dental specialists having such access.

Defense counsel recognized that a motion for summary judgment – one seeking dismissal of the case without trial – would not be fruitful because such a motion can only be successful when, among other things, there is no legitimate difference between opposing expert opinions. Therefore, defense counsel thoroughly presented Dr. P with her options: go to trial and ask a jury to determine whether she had run afoul of the standard of care, allowing them to award money to compensate O for his injuries if they determined that she did not meet the standard of care, and if that was causative of his injuries; or trying to reach a pre-trial settlement, presuming that the carrier agreed with that prospect, which it did.

Dr. P frankly said to her attorney that, in multiple continuing education classes she had taken, the need for pre-implant CBCT studies was discussed, for the very reasons highlighted in O's treatment; she further acknowledged that she would have to testify to that experience if asked at trial. Dr. P was concerned, so she authorized attempts to resolve the case. Because O's injuries were viewed, even by his own lawyer, as not severe, evidenced in part by O having never sought subsequent evaluations or care other than at the direction of his attorney, a modest settlement was reached.

Takeaways

It is the rule, and not the exception, that experts for plaintiffs and defendants will disagree, and that is also the case for dentists as a whole, outside of the litigation realm. Those disagreements take center stage during dental malpractice trials, with jurors left to determine which of the opposing positions they accept. As Dr. P reasoned here, it is rarely, if ever, simply a coin flip, because a host of factors play into jury determinations, so the pre-trial "prediction calculus" takes into account a common-sense approach as to how lay people will most likely come to their conclusions on matters of science and professional expertise. Sometimes demeanors of the parties and/or experts carry the day; sometimes the bases of expert opinions are determinative; and sometimes, as might play here, particular professional experiences in the dentist's past are of significance. While legitimate (not fabricated) differences of expert conclusions generally preclude dismissal before trial by way of motions, those differences will need to be resolved by a trial jury. There is no getting around that.

This case study briefly touches on the concept of statute of limitations (SOL), so a short description is in order. The SOL is the time following a claimed negligent event (or sometimes the subsequent discovery of that event) within which a plaintiff must file suit, or be forever time-barred. Of course, as with so many issues in the law, there are nuances and issues that can serve to lengthen the allowable timeframe, but they are exceptions, with the statutory SOL generally being the bedrock. The concept of SOL is perhaps the most variable legal issue as between the States – or at least close to the top of the list – but it is a consideration for attorneys (or self-represented plaintiffs) to grapple with, and not something with which dentists need to familiarize themselves.

As the body of this case study references, divergent views exist within dentistry as to what radiographic techniques are "best" for various planned procedures or diagnostic approaches, which in the litigation arena often translates to opinions as to the standard of care. Articles in respected journals present competing ideas. Some take the approach that dentists are in the most ideal position to make patient-based, procedure-based, and circumstance-based decisions as to which radiographic techniques – whether CBCT, panoramic, periapical, etc. – are most appropriate clinically; others are more rigid, asserting, for example, that nearly all invasive dental/oral surgical procedures require CBCT studies in advance. While we do not advocate here in either direction, dentists and oral surgeons ought to be aware of these opposing schools of thought and consider them in decision-making, realizing that jurors might get the final say.

We end on a note about the decision faced by Dr. P. Given that she had a "consent-to-settle" policy, it was her right to refuse any type of settlement, regardless of the input or advice of her counsel or insurer. Had she not had such a policy, that decision would not have been hers to make. This is yet another issue for dentists to consider when choosing a malpractice carrier and policy.

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Understanding the parts of a malpractice policy can help oral and maxillofacial surgeons make informed decisions about their insurance. This article breaks down the key components of malpractice coverage, allowing you to understand how it works and the safeguards it provides.

Key Concepts

Defining OMS malpractice insurance
The components of a malpractice insurance policy
Considerations for choosing a carrier

As an oral and maxillofacial surgeon, understanding the details of your malpractice insurance policy is crucial. It can help you better protect your practice, your reputation, and your career.

In this article, you will learn about the parts of an OMS malpractice insurance policy. Doing so can help you make informed decisions and get the right coverage for your professional needs. Whether you're a seasoned OMS or just starting out, this guide can help you understand your malpractice insurance better.

What is OMS malpractice insurance?

OMS malpractice insurance is a type of professional liability insurance. It's designed to protect oral surgeons from financial loss due to claims of wrongdoing. These claims can arise from alleged negligence, errors, or omissions when providing services.

A malpractice policy is more than just a safety net. It's a crucial tool for safeguarding your reputation and career in the face of potential lawsuits. Without adequate coverage, a single malpractice claim can lead to significant financial strain. That's why understanding the nuances of an OMS malpractice policy is essential. It allows you to ensure that your policy provides the necessary coverage for your unique practice needs. It can also help you navigate the claims process more effectively.

The components of an OMS malpractice policy

An OMS malpractice policy is composed of several key aspects. Each part plays an important role in defining the scope and limitations of your coverage. The main parts of a policy typically include the declarations page, insuring agreement, exclusions, and endorsements. Each component provides specific information about your policy.

The declarations page is the first part of your malpractice policy. It provides a snapshot of your coverage. This page typically includes information such as the policyholder's name, policy period, and policy limits. It's essential to review this page carefully. It can help you understand the basic parameters of your coverage and ensure they align with your practice's needs.

The insuring agreement is the heart of your malpractice policy. It outlines the carrier's promise to provide coverage for claims arising from your professional services. This section details the circumstances under which the carrier will defend and indemnify you. Understanding the insuring agreement is crucial. It helps you grasp the extent of your coverage and the conditions under which it applies.

Exclusions are as important as the coverage itself. They define what is not covered by your policy. Common exclusions may include intentional acts, sexual misconduct, or services rendered outside the scope of your license. The exclusions section is important. It will help you identify any coverage gaps.

Endorsements can add to, remove from, or modify the standard coverage. For example, an endorsement can be added to your policy to reflect a premium credit if you are working part-time or taking an extended break from practice.

The consent-to-settle clause is a critical aspect of any malpractice policy. Under a pure consent provision, you, the policyholder, have the right to refuse to settle a malpractice claim, with no exceptions. The carrier cannot settle a claim without your consent. Keep in mind that some insurance providers offer "consent to settle" only with certain exceptions. MedPro Group – the industry’s leading carrier – offers pure consent with no exceptions.

Types of OMS malpractice policies

Malpractice policies come in two main types: Claims-made and Occurrence. Understanding each one is essential when choosing the right coverage for your practice.

Occurrence coverage doesn’t end when the policy ends. If someone files a claim against you, your Occurrence policy from the year of the incident will cover you. Claims-made coverage ends when the policy ends, so you may have to buy tail coverage to stay protected for any claims made against you after the policy ends. The major differences between the two are how long they protect you and how much they cost. They both have unique benefits.

To learn more about malpractice policy types, including tail coverage, check out our Guide to Malpractice Insurance.

Choosing the right OMS malpractice insurance for you

Choosing the best OMS malpractice insurance requires careful consideration. It's not just about finding the most affordable policy, but the one that offers the most comprehensive coverage for your specific needs. Consider factors such as the carrier's financial stability, claims management success, and customer service. In addition, the policy's coverage limits, exclusions, and endorsements are important to take into account. Make sure the policy covers all aspects of your practice. To learn more about how to choose the right malpractice policy, read this article.

When comparing providers and policies, don't just look at the price. Consider the coverage each policy offers and whether it meets your specific needs. Your carrier should also have a great reputation and long-standing financial stability. Check reviews and ratings from independent agencies. Remember, the goal is to find a policy that offers the best protection for your practice, not just the one with the lowest price.

Several factors can influence how you choose your malpractice insurance, including how much it costs. When it comes to your malpractice insurance cost, it’s important to note that your practice location, the size of your practice, and your claims history will be factored in. It's important to fully disclose all aspects of your practice to your carrier to ensure you receive adequate coverage.

Feel confident in your coverage with MedPro Group

OMS malpractice insurance can seem overwhelming and confusing. With the right carrier on your side, you can ensure you get coverage tailored to your needs so you can practice with greater confidence.

With 125+ years of experience and half a million cases handled, MedPro Group is uniquely positioned to protect your good name. Secure your peace of mind by starting a quote today.

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Key Concepts

Preventing wrong-site surgery through pre-procedure precautions
Vicarious liability for documentation errors
Pure consent to settle clauses in malpractice policies

Background Facts

Legal Action

Substantial settlement amounts were paid to T on behalf of both Dr. O and Dr. M. Additionally, Dr. M was sanctioned by his State Board.

Takeaways

Summary of Takeaways

Wrong site surgery remains a leading and largely preventable source of malpractice claims.
OMS are accountable for errors made by delegated staff, even when those errors were unintentional.
Simple confirmation practices before irreversible procedures can prevent patient harm and legal consequences.

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This document does not constitute legal or medical advice and should not be construed as rules or establishing a standard of care. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.

MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. All insurance products are underwritten and administered by these and other Berkshire Hathaway affiliates, including National Fire & Marine Insurance Company. Product availability is based upon business and/or regulatory approval and/or may differ among companies.