Patient Taking Bisphosphonates Sues Oral Surgeon for Implant Failure

Background Facts

When J presented most recently to her oral surgeon, Dr. T, it had been over a year since Dr. T had extracted her lower left first molar due to a vertical fracture from eating popcorn. J was currently 64 years of age, active and fit. The front desk administrator for Dr. T asked J to complete an updated medical history form, but J simply said, “I’m in perfect health, so you don’t have to worry about me.” With that, the staff member checked “no” for every answer on the office form, and J signed it.

J was unhappy with the empty gap where the extracted tooth had been and had heard about dental implants from commercials she had often seen on television, so she asked Dr. T whether that might be an option for her. After looking at new radiographs, examining the area clinically, and speaking with J’s general dentist, Dr. T said that she had more than enough bone height and width to accommodate an implant, which would then be restored with a crown. Dr. T scanned the medical history form, made no comments about it, explained the implant process, and passed J on to the office manager to discuss the finances and scheduling.

A few weeks later, Dr. T placed a single left mandibular implant, with local anesthesia. The procedure went smoothly, with Dr. T ending the visit by explaining that J needed to keep the area exquisitely clean to allow for healing. Given J’s excellent home hygiene, Dr. T had little concern in that regard. The plan was to refer J back to her general dentist for restoration in about 5 months.

J began to feel that the area was becoming swollen and tender nearly halfway into the implant healing period, so she came to see Dr. T, who confirmed localized mucobuccal swelling which was very sensitive to palpation. Dr. T asked J whether something had happened – either medically or in terms of trauma – to trigger a change in healing. All that J could come up with was that her endocrinologist had increased her dose of a commonly used bisphosphonate shortly after the implant was placed, because of a slight worsening of hip osteoporosis. Dr. T was surprised to hear that J was on any course of a bisphosphonate because J had never disclosed that fact to him or his office staff. When asked why J had not previously discussed it, she said that she did not see it as important because it involved her hip, which had nothing to do with dentistry.

Dr. T placed J on a 10-day regimen of Amoxicillin, after which J was to return. When J returned, there was little change to the area, other than an increase in swelling and redness. A panoramic radiograph and then a CBCT showed some troubling signs: a clear bony destructive process was taking place in the left mandible, extending well beyond the area immediately adjacent to the implant. Dr. T suspected osteonecrosis secondary to her ongoing bisphosphonate use, so he involved a head and neck surgeon. The two worked together, initially to confirm the diagnosis histologically by way of biopsies, and then to do a segmental resection, which sacrificed mandible and the lower left bicuspids to the second molar teeth, as well as the inferior alveolar nerve. Antibiotic therapy was instituted, with local measures, leading to a clinically well-healed surgical site.

The surgeons acknowledged that subsequent reconstruction might be compromised by the same process that caused the problem in the first place. So, they consulted with various medical colleagues, who agreed with that assessment. Ultimately, the agreed-upon plan was to bone graft the area as much as possible and to have the area restored with a removable partial denture, rather than the placement of implants to serve as the foundation for a fixed appliance.  That plan went forward uneventfully.

Legal Action

Becoming increasingly upset that she had initially gone to replace a missing tooth and ended up losing a significant portion of her jaw and the function of her left inferior alveolar nerve, she sought out and then retained an attorney to act on her behalf. Dr. T and his practice were sued as the defendants. Defense attorneys were assigned by the malpractice carrier to represent Dr. T and the practice.

The thrust of the allegations made by J, now the plaintiff, and her attorney was that Dr. T had delegated the important task of updating a health history to an untrained, non-professional, and accepting that without confirming the results with the patient. The case also asserted that, given J’s age, Dr. T should have been concerned about at least a reasonable likelihood that J might be taking a bisphosphonate and specifically asked about it before proceeding with bony surgery, which was entirely elective. The lawsuit went on to argue that, as a result of these failures, Dr. T put J at great risk for the development of medication-related osteonecrosis of the jaws (MRONJ), a risk that came to pass and caused significant damage.

J’s expert oral and maxillofacial surgeon was fervent in putting these exact theories forward, but the defense attorneys were unable to secure a credible expert who was as supportive of the defendants’ actions. In fact, several potential defense experts expressed to defense counsel that they were in agreement with plaintiff’s counsel about the claimed negligence and its effects.  The case was settled – with the consent of Dr. T – for a significant amount of money, although far less than might have been awarded by a jury to this very sympathetic plaintiff.

Takeaways

While Dr. T did not personally obtain J’s updated health history, it was his employee who did so, thereby making Dr. T vicariously responsible for those actions, as though he had acted himself.  This concept is regularly applied in the law, and it is enforceable in nearly all, if not all, jurisdictions. Perhaps more common applications of the concept in oral surgery practices involve office staff providing dental or medical advice to patients without consulting the doctor, and chairside staff dropping objects which are swallowed or aspirated. Here, Dr. T magnified the problem by failing to follow up with J beyond what the staff member had recorded, totally unaware of the cursory response J had earlier stated to the front desk administrator, which had been accepted as complete. As in J’s case, many patients do not fully disclose their health histories to oral surgeons, perhaps in an effort to hide, but likely more commonly because they do not understand why an oral surgeon would need to know about conditions seemingly entirely unrelated to teeth and jaws. That is why a real discussion, of which the oral surgeon is a part, is needed.

Arguably, a rebuttable presumption might exist that post-menopausal women take bisphosphonates, but that group of medications is not an absolute for those patients and by no means limited to that patient population. The point, then, is clear: a thorough medical history is an integral part of patient care, so it should not be delegated and it must be taken seriously as a critical component of protecting patient safety. That lapse led to the injuries suffered by J, with no available expert opinions to the contrary. In situations of disclosed bisphosphonate regimens, a helpful risk management technique for oral surgeons is to consult the prescribing physician before the start of a treatment plan, especially one that involves invasive techniques.

While obtaining medical consultations is often a very valuable step, a medical clearance ought to be viewed as a “permission slip” rather than a “requirement slip”. Simply because a physician might conclude that it would be medically safe for planned oral surgical procedures to go forward, that does not mean that the obtaining oral surgeon must then go forward if a sense of discomfort still exists. It is, after all, the practitioner performing a procedure who is ultimately responsible for it, and potentially liable if things turn out poorly.

Finally, and related to the issue of medical consultations, this case demonstrates the benefits of a team of providers working together on complex problems to reach the best result possible under the circumstances. It is not a sign of professional weakness or inexperience to seek outside resources, but instead a demonstration of mature professionalism, with the sole goal being the achievement of patient protection and patient health.

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.