Dental State Boards View OMS Records With Strict Scrutiny

Background Fact

Dr. B has been an oral and maxillofacial surgeon in his solo practice for nearly 3 decades, in which he makes all chart entries by hand, unwilling to use electronic records as most of his colleagues had been doing as of long ago. On a typical day in the office, he received a telephone call from a referring general dentist, asking Dr. B to see a healthy 21-year-old woman, R, who was in pain due to a pericoronitis overlying a soft tissue-impacted lower left third molar. Dr. B agreed to evaluate the patient as soon as she arrived. Upon R’s arrival, she completed a health history form in the waiting room, as well as various other documents.

Within a few minutes, R was taken for a panoramic radiograph, and then seated in a surgical operatory. Dr. B examined R, both clinically and radiographically, and determined that tooth #17 was a candidate for extraction, with R agreeing to proceed that day. Because she did not have an empty stomach, the procedure would be performed under local anesthesia. Dr. B went through a detailed informed consent process with R, culminating in R signing a “surgical consent form” which set forth all of the risks, benefits, and alternatives that had just been discussed with her. Dr. B specifically pointed out in discussion that the roots of tooth #17 appeared radiographically to lie in close proximity to the inferior alveolar nerve canal. He explained the potentially permanent associated paresthesia risk to R, in words that she clearly understood, as well as placed a circled asterisk next to that written risk on the consent form, which was kept in R’s chart.

Following the administration of local anesthesia, and allowing it time to take effect, Dr. B efficiently and routinely extracted tooth #17, without sectioning or bone removal, after which he placed a single suture which was to be removed in a week. Dr. B made the following handwritten chart entry: “ext STI 17 w/l.a., BSS x1, ret 1 week for SR, Ibuprofen 400 q4h prn.” When R returned for her suture to be removed, she complained that she felt profoundly numb on the left side of her lower lip. Dr. B reminded R of their pre-surgical discussion. Throughout the course of 4 monthly follow-up assessment visits, there were no signs of improvement, after which R never again returned.

Legal Action

Nearing a year following surgery, a process server came to Dr. B’s office and handed him a Summons and Complaint, through which Dr. B learned that R was suing him for oral surgical malpractice in causing her ongoing numbness, and for failing to obtain her informed consent. Dr. B immediately reported this to his professional liability carrier, which placed him in contact with defense counsel assigned to defend him. The litigation process had begun.

Through all discussions with his attorneys, and by way of his deposition testimony, Dr. B was steadfast in his views that the tooth was in need of extraction, that he had made no errors in his surgery, that the inferior alveolar nerve injury was a result solely of the tooth’s anatomic relationship with that nerve, and that he had obtained R’s informed consent via a thorough back-and-forth discussion which was memorialized in a signed writing. Counsel for both R and Dr. B retained expert oral and maxillofacial surgeons to testify as to their respective opinions at trial. Dr. B exercised his policy’s consent provision and refused to agree to attempts at settlement, moving the case forward to trial.

Trial and Beyond

In front of a judge and a jury, both sides presented their cases. R’s expert contended that Dr. B’s surgery had been unnecessary, arguing that the pericoronitis could have been calmed down with a course of antibiotics, and maintained with regular dental hygiene visits and periodic antimicrobial mouth rinses. The expert also put forth R’s contention that Dr. B had merely glossed over and minimized these alternative treatment options, thereby invalidating the informed consent process. Dr. B and his expert explained to the jury that the suggested alternatives were simply “temporary fixes” that would have ultimately been unsuccessful, eventually resulting in an absolute – and potentially emergent – need for the extraction at an older age, when the process would have been more difficult. The defense expert eloquently educated the jury about the fact that decisions about surgery come down to weighing the high probability of a positive outcome against the much lower likelihood of a known risk coming to pass, a process which was demonstrated “on signed paper” to have been fully considered by R. 

In under an hour of deliberation, the jury unanimously returned a verdict in favor of Dr. B, on the claims of both oral surgery malpractice and lack of informed consent. Dr. B was, for obvious reasons, thrilled about the outcome. But R became angry, feeling as though she had been deprived of compensation that was due her. After discussing with her attorney the possible options she then had, she ruled out an appeal because of her attorney’s advice that her chances of success by that route were quite low and would cost a significant amount of money. But she was “all in” regarding filing a complaint with the state’s Dental Board, and submitted a formal complaint against Dr. B, simply claiming that he had caused her harm by virtue of his negligent oral surgery treatment.

With the help of his defense attorney, continuing to represent him pursuant to the terms of his malpractice policy, Dr. B provided the Board with a copy of his records and a detailed explanation of what he did and why, much as he had at trial. Dr. B appeared multiple times at Board proceedings, accompanied by his counsel, and responded to many questions, most of which focused on the quality and completeness of his office chart entries for R.

The Board issued a set of findings against Dr. B, requiring that he pay a substantial fine and take 10 hours of continuing education on the subject of recordkeeping, with a record of that discipline to be posted on the state’s licensing website. The thrust of the Board’s sanctions was that, even though there was no evidence that he had acted improperly regarding the extraction or that he had provided R with inadequate information with which she could make an informed decision, Dr. B had failed to comply with the state’s very specific strict standards of recordkeeping. The Board described in detail that Dr. B had violated the recordkeeping statute by: failing to make a chart entry that provided a diagnosis serving as the basis for treatment; failing to describe the surgical procedure performed in the detail required; failing to state a prognosis for R’s potential recovery from the nerve injury at any post-operative visit; failing to record R’s vital signs before surgery; failing to record the amount and type of local anesthesia given; and failing to document that a doctor-patient discussion had taken place to explain the contents of the signed consent form.

Takeaways

It is well-known by and often discussed among oral surgeons that the specter of being sued for dental malpractice – by patients who have undesired surgical outcomes – exists. But it is far less often considered that patients might file complaints against them with state Boards, either in conjunction with filing lawsuits or as stand-alone actions. As a matter of self-protectiveness, it is prudent to also understand the realities that Board actions carry: while Dr. B celebrated his trial success, that celebration was short-lived, only to be followed by what might be legitimately viewed as a far more serious chain of events. Most professional liability policies provide legal defense for Board actions, but few, if any, indemnify (“protect financially”) for fines meted out by those Boards.

The March 2025 issue of JADA featured an article by Dr. Yen-Wen Huang, et. al., which analyzed many Dental Board disciplinary actions in Texas, albeit against general dentists. That review concluded that the highest infraction group cited was for inadequate recordkeeping, accounting for 39% of all occurrences of misconduct, well exceeding those groups that were clinically based. These results stand as a stark reminder of the importance of recordkeeping in the course of practice. It is a very fair assumption that Dental Boards see it that way.

Addressing the specific areas of deficiency pronounced against Dr. B, and blending them together, a sound lesson to be learned is that the subsequent readers of Dr. B’s chart – here, the Board members – were unable to discern the details of significance of Dr. B’s treatment of R, simply by reading his chart. Oral surgeons, as well as all practitioners, are obligated to know and meet the statutory requirements for recordkeeping of the state(s) in which they practice, lest they might be subject to discipline in the event of a patient complaint to a Board, even for issues unrelated to charting.

Finally, we touch briefly on electronic health records (EHRs), a topic related and seemingly relevant to the issues discussed here. Many EHR software programs contain templates for commonly performed procedures. Those templates are best seen as starting points – not end points – for recording patient interactions, subject to modification so as to accurately and completely state what took place for the particular patient. Savvy plaintiffs’ attorneys will use a one-size-fits-all template to aggressively cross-examine, often times succeeding in damaging a surgeon’s credibility, based solely upon a single inaccurate or overly generalized chart note. Dental Boards and juries have no objective way to assess the actions of a defendant oral surgeon by any means other than an evaluation of the chart entries. They matter a great deal.

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.