Practice More Safely // Risk Tips // Patient Blames Oral Surgeon For Trigeminal Neuralgia Diagnosis

Patient Blames Oral Surgeon For Trigeminal Neuralgia Diagnosis

Marc Leffler, DDS, Esq.
August 29, 2025

Reading time: 8 minutes

In oral and maxillofacial surgery, the exact cause of a patient’s injury is often debatable. In this case study, a patient presents to her general dentist complaining of pain in her upper right central incisor. During root canal therapy, the endodontic file separates. The dentist refers the patient to an oral surgeon for an apicoectomy. Due to ongoing pain post-surgery, the patient visits a pain management doctor, who diagnoses trigeminal neuralgia and claims it is due to the previous care. Though there is insufficient evidence to support this, the patient sues both practitioners for negligence.

Key Concepts

Multiple negligence claims against two defendants
Differentiating science and emotion in litigation
Demonstrating solidarity between multiple defendant practitioners

Background Facts

K, a basically healthy 58-year-old woman, presented to her general dentist of many years, Dr. J, having not seen him for some 18 months, now complaining about recent and progressing pain in her upper right central incisor (tooth #8), which had been crowned since her early 30s. Dr. J examined K and found the tooth to be tender to percussion, with a sizeable, well-circumscribed periapical radiolucency. The tooth tested non-vital. Dr. J explained to his patient that she needed root canal therapy, which he could at least start that day, if not complete. K agreed to proceed.

With local anesthesia, Dr. J made routine access into the tooth and began to use endodontic files, all with a rubber dam in place. When he removed the second file in his progression, he noted that its end was missing about 4mm, so he presumed that the file had separated. A periapical film confirmed the suspicion that the tip of the file was lodged near the tooth’s apex, with half of its length projecting beyond the apex. Dr. J was very experienced performing endodontics, especially on anterior teeth, so he worked to try to remove the separated file, unsuccessfully.

After doing that for almost an hour, he explained to K what her options were in order to save the tooth: refer to an endodontist to try to complete the root canal therapy, or refer to an oral surgeon to perform an apicoectomy. Dr. J was of the view that an endodontist would not likely be more successful than he had been, and he was concerned about any compromises in the care, due to the large periapical lesion. K opted for the oral surgery route, and immediately went to the office of Dr. W, who had told Dr. J that she would perform the apico as soon as the patient arrived. Uneventfully, Dr. W added additional local anesthetic to the already-numb site, raised a semi-lunar buccal flap, and entered through the thin buccal plate to visualize and then remove the apical 2-3mm of tooth and the partially extruded endodontic file, excising the lesion before placing a retrograde seal and suturing the site.

At K’s post-operative visit with Dr. W, the area was stated to have “chronic dull pain,” but it looked clinically stable, so the sutures were removed, with K given an appointment to return in a month if she continued to have any symptoms. Instead of following-up with either Dr. W or Dr. J, K presented to her primary care physician the next week, complaining of ever-increasing and severe pain. The PCP referred K to a pain management physician, who, after seeing K for several consecutive visits, made a diagnosis of trigeminal neuralgia because of her continued pain despite non-narcotic and then narcotic analgesics. The pain management doctor voiced that “it had to be the dental work” that caused this. K had a brain CT and MRA performed, which showed nothing abnormal, and began a course of a common anti-seizure medication – often also given for neuropathic pain – prescribed by the pain management practitioner. The symptoms never abated, and K even claimed that the constant pain worsened to the point that she could not concentrate enough to read a book, watch a movie, or drive a car.

Legal Action

Encouraged to do so by her family members and friends, K sought out an attorney whom she located on the internet as one “specializing in trigeminal neuralgia cases: if you have trigeminal neuralgia from poor dentistry, we can get you large sums of money.” After K’s first meeting with the attorney, the attorney brought suit on her behalf against Dr. J and Dr. W, alleging negligent treatment that directly led to trigeminal neuralgia. Of note is the fact that the sole physical injury claimed throughout the entire litigation was trigeminal neuralgia, and nothing about any other pain condition at all.

The usual course of discovery ensued, with the taking of depositions and the exchange of documents and expert reports. K’s pain management doctor would draw the causal connection between the dentistry and the trigeminal neuralgia – “it must have been the dentistry” – with her attorney’s frequently-used dental and oral surgery experts claiming that Dr. J used improper and excessive pressure so as to negligently break the file, and Dr. W improperly elevated the buccal flap too high, thereby injuring the infraorbital nerve. Neither of the defendants was willing to entertain the possibility of settlement, both steadfast in their views that the treatment they had rendered was proper in all regards. Each exercised their malpractice policy consent provisions, directing the case to trial.

At trial, K testified to her constant pain, although she never spoke about any trigger that set off a period of increased pain, and she never testified to any sharp, stinging pain. The pain was dull, chronic and constant. The defendants’ dental and oral surgery experts, respectively, explained to the jury that Dr. J and Dr. W used appropriate standard technique at every step in their own procedures, including a discussion as to why and how files non-negligently separate, that the photos of the gingival scar showed the incision made was at the proper location, and that there were likely “dental fixes” to her claimed problems. But K never returned to either of them, depriving them – and K as well – of the opportunity to dentally work toward resolving her complaints.

Perhaps the most significant trial witness for the defendants was a university-based neurosurgeon who had published about trigeminal neuralgia and treated many such patients who came to him from across the country. His testimony was decisive: trigeminal neuralgia, he opined, is not caused by dentistry or any other peripheral act, but instead a result of an intracranial pulsating vessel in close proximity to a portion of the trigeminal nerve, which erodes away the nerve’s sheath, exposing the “wire” portion of the nerve and creating the equivalent of a “short circuit” that periodically creates sudden, short-lasting, and severe sharp pain. A diagnosis of trigeminal neuralgia was, according to the neurosurgeon, completely excluded in K because her non-triggered pain – which he did not dispute as being as described – is not at all what, “by definition,” exists in trigeminal neuralgia patients. Her normal intracranial radiologic studies provided conclusive objective evidence of the absence of the proximate nerve-vessel relationship that occurs in trigeminal neuralgia.

As the jury deliberated, the foreperson sent a note to the judge, asking whether they can consider pain other than from trigeminal neuralgia. The judge responded that, because trigeminal neuralgia was the only claimed injury, they could not. Shortly thereafter, the jury returned a general verdict in favor of both defendants.

Takeaways

Addressing the verdict first, a general verdict is one by which the jury simply concludes “for the plaintiff” or “for the defendant(s),” with no specificity. Special verdicts, on the other hand, require that jurors answer direct questions, such as “was the defendant negligent?,” and “did that negligence cause injury to the plaintiff?”. The difference is jurisdictionally-specific. But in this case, it is certainly fair to hypothesize that, had other types of pain been pled, or had the judge allowed the jury to consider other types of pain besides trigeminal neuralgia, a verdict for the plaintiff seems at least likely.

This concept leads to two important points: (1) the particularity with which a plaintiff’s attorney pleads the case is critical to a case result; and (2) the defendants’ neurosurgery expert’s precise anatomic testimony, with the guidance of experienced defense counsel, demonstrated itself to be a far cry above and beyond K’s pain management doctor’s claim that “it must have been the dentistry,” implying a mere temporal relationship between the dentistry and the claimed symptoms. The value of well-credentialed experts, who can exhibit true proficiency, cannot be underestimated in the trial setting.

The defendants in this case practiced in different areas of dentistry, so the “sharing” of a single standard-of-care expert between them would be challenging at best, and disallowed in many jurisdictions. But the situation is different when it comes to experts who testify about questions of causation and/or injuries, so when possible and practical – which is far from a common occurrence – the presenting of a completely united front as between the defendants can send the jury a strong message, namely that there is no question that there can be only one way to interpret a certain set of issues.

Trigeminal neuralgia is a devastating disease, and it is described that way in detail by plaintiffs’ attorneys, who claim, as in this case, that dentistry or oral surgery is the culprit in getting there. The internet is replete with large numbers of “trigeminal neuralgia attorneys,” many of whom advertise and argue that they will obtain large recoveries against dentists and oral surgeons, often times relying upon non-scientific claims that garner jury sympathy. Defense teams of attorneys and experts can prevail through approaches that place science above emotion, while still exhibiting empathy for patients who might legitimately experience pain. But there is a real difference between the pain of trigeminal neuralgia and nearly everything else, and that point is one of several which was driven home at this trial.

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 OMS case study illustrates how patient anatomy, clinical judgment, and external pressures can turn a complex treatment plan into a malpractice claim. Learn why it’s critical to trust your professional judgment, recommend only viable treatment options, and prioritize patient safety when weighing surgical risks and alternatives.

Key concepts

All-on-4 procedure leads to serious complication
Trusting your clinical judgment
Risk management lessons for implant dentistry

Background facts

R was a 61-year-old generally healthy man who had worn maxillary full dentures for years, but was becoming increasingly dissatisfied with them, both functionally and esthetically. His lower arch posed no problems for him: other than a 3-unit fixed bridge on the right and a 4-unit bridge on the left, he had natural teeth in place. In the past, he was a nearly pack-a-day smoker, but he had since overcome that habit. He presented to a multispecialty dental office he had seen advertised locally, seeking to improve the condition of his maxilla.

He initially saw a prosthodontist, who evaluated the mouth and concluded that an implant-supported prosthesis would work well for R. Per office policy, the on-site oral surgeon would handle the implant aspect of treatment, with the patient then returning to the prosthodontist for the restoration. That same day, the OMS, Dr. G, met with R, ordered a CBCT study, reviewed it, and discussed the available options. Because of the paucity of maxillary bone — especially posteriorly — and "low-lying" maxillary sinus cavities, a traditional implant arrangement would not be possible. So, 2 options were available: (1) perform bilateral sinus lifts with bone grafting, allow for an adequate healing period, place 3 implants (potentially) on each side, and then restore the maxilla prosthetically after osseointegration; or (2) do an all-on-4 procedure using the pterygoid bones bilaterally for both posterior implants, place a provisional prosthetic appliance that same day, and later convert to a permanent prosthesis after integration.

The office management encouraged the most time-efficient case completions possible. With that in mind, Dr. G and the prosthodontist discussed the available options, with Dr. G expressing some concern about the radiographically appearing rather thin pterygoids, particularly on the right side. However, the prosthodontist did not want to wait for the entire sinus lift process to play out, and encouraged the OMS to do the all-on-4 approach, despite her stated concerns. Dr. G (reluctantly) agreed, and so did R, after they had a full discussion about the most common risks, benefits, and options, with R signing a consent form.

On the day of treatment, R took the oral sedative prescribed for him by Dr. G, just before leaving home. Dr. G injected local anesthetic solution buccally and palatally across the entire upper jaw. Because she is left-handed, Dr. G began with her preferred side, the left, because access was easier. Referring to the CBCT images, she uneventfully placed 2 implants on the left side, 1 at the approximate site where tooth #11 had been, and 1 angled into the pterygoid: both were clinically stable. She then turned to the right side to place 2 implants before the prosthodontist placed the ready provisional. The implant near the prior site of the upper right canine was smoothly placed. In performing the right pterygoid osteotomy, Dr. G's concern came to fruition, as the bur, which had initially been met with typical bony resistance, suddenly fell into a void, which she presumed to be the pterygopalatine fossa. When she backed out the handpiece, bright red, pulsating blood heavily flowed into the mouth, clouding the entire field.

Her initial approach was to pack the site with gauze strips, which did slow the flow, but the gauze quickly filled with blood and continued to do so despite repeated packing. Dr. G believed that she had pierced into (a branch of) the right maxillary artery. With her being unable to gain hemostatic control, and being in an outpatient setting with an awake patient, she attempted to gain access to the source of the bleed by entering the maxillary sinus through a Caldwell-Luc approach, and then cutting a window through the posterior sinus wall to enter the fossa. But doing so only provided a second outlet of significant bleeding, leading her to conclude that ligating the artery required in-hospital care by a head and neck surgeon. R was transported by ambulance to a nearby medical center, with Dr. G accompanying him to try to maintain site pressure as they travelled. R was emergently taken to the OR, where he was induced and intubated, and where an ENT surgeon unsuccessfully attempted access to the torn vessel endoscopically, ultimately ligating the vessel some 2 hours later by way of a preauricular approach infratemporally. R remained in hospital for a week, and missed work for more than a month, left with a scar and always feeling limitations to his usual exercise routine.

Legal action

R's newly retained attorney obtained all of the relevant dental and medical records, and sent them on to an academic-based OMS for review. That expert passed on his conclusions to the attorney who hired him: that Dr. G succumbed to external pressures and performed a procedure that she knew was concerning and risky, given the specific anatomy presented, and that the preferred set of procedures for this patient would have begun with the sinus lift and graft approach. The attorney also contacted the treating ENT, who was willing to provide his opinion that the bleed and the resultant surgery and after-effects were due to an ill-conceived surgical treatment plan by Dr. G.

Dr. G contacted her malpractice carrier when she provided records to R's attorney, and again when she was served with papers that initiated the lawsuit against her. She had personally been deeply upset by the events, now some months ago, and she told her assigned attorney that she was eager to put this behind her, partly for the personal impact but also because she realized that she had not exercised her best judgment.

Settlement moves began quickly, with an agreement reached before discovery even started. In addition to money, which covered medical costs, physical and emotional distress, and lost income, R made a somewhat unusual request: that Dr. G write an apology and explanation to him, which he felt that he needed to close the chapter. Despite her attorney advising Dr. G against doing so, explaining the potential impacts upon a Board complaint (which never happened) or hospital credentialing, she did as R had asked, because she, too, needed the closure.

Takeaways

Pressures are placed upon oral surgeons, and in fact many other types of practitioners as well, rather frequently, and they come from sources as diverse as patients, dental or medical colleagues, and practice supervisors and owners. The reasons for the responses to those pressures are equally diverse, from the need to maintain employment, to conflict aversion, to ego. In the end, though, all that really matters on the legal side of practice are adherence to standards of care and principles of ethics. Perhaps, a safe approach for practitioners to take is that if something simply does not feel right, stay away from it. While that might not always be practical, it can at least be an internal starting point, if not ultimately the end point.

It is the general rule, rather than the exception, that there are most often multiple options/alternatives to overcome dental and surgical problems. Principles of informed consent dictate the requirement to advise patients of, among other things, available alternatives. But that does not mean every alternative, only the viable ones. And if an alternative is not viable for any reason, whether because of patient anatomy, underlying patient medical conditions and social habits, or provider limitations (based upon ability or experience), that alternative falls out of the realm of informed consent. Here, the anatomy of R's right pterygoid and, perhaps (reading between the lines) her own limitations, Dr. G seemingly knew that an all-on-4 plan was not viable for R. Fighting her better judgment was a clear factor in the events and injuries.

All procedures carry risk. It is part and parcel of healthcare delivery, particularly when surgery is involved. Practitioners appropriately take specific risks into account when weighing the potential coming to fruition of those risks against the benefits of doing the procedure. There is no one-size-fits-all formula to use to come to a decision, but instead a subjective process that is individual to every surgeon, considering a host of factors. Many risks come to pass (in the form of injury) in the absence of any negligence, with that concept being a foundation for much of malpractice defense, but when injuries occur because of negligence, that often becomes the very basis for plaintiffs' cases against doctors.

Decisions about settlement versus trial are extremely case-specific, with the insurer, counsel, and all litigants playing significant roles. Practitioners who have "pure consent" policies are permitted, per policy language, to withhold consent to a settlement, in favor of going to trial. But in cases where practitioners do provide their consent to settle, that does not mean that the malpractice carrier must then settle the case, but simply that it may agree to a settlement. Think of it as a permission slip, but not a requirement slip.

Summary of takeaways

External pressures should never outweigh clinical judgment when determining the most appropriate treatment plan.
Not every treatment option is suitable for every patient — anatomy, provider experience, and overall risk must be carefully evaluated before proceeding.
When complications occur, treatment decisions that fall outside the standard of care can increase liability exposure and lead to malpractice claims.

In this real-life case study, dentists will see how a billing dispute and incomplete informed consent process escalated into a malpractice lawsuit. Learn why clear communication about treatment risks, accurate coding practices, and thoughtful handling of patient concerns are essential to reducing liability and protecting patient trust.

Key concepts

Dentist sued after a billing dispute and nerve injury
How informed consent gaps can increase malpractice risk
Why accurate coding and patient communication matter

Background facts

For Dr. A, extracting teeth was an everyday part of practice, as was virtually the entire scope of dentistry. In addition to postdoctoral training, she had been performing these procedures for years in a region of the state with no oral surgeons within a 2–3-hour drive. She was a participating provider in several dental insurance plans that were popular among her patients.

One such patient, P, was an 18-year-old high school senior who presented for an annual recall visit, with a new complaint of periodic pain associated with the lower right third molar. Despite P being of majority, his mother accompanied him into the treatment room to see Dr. A. Following a clinical examination, a panoramic film was taken and viewed by Dr. A. Tooth #32 was erupted, had incomplete apex formation, but was still in close radiographic proximity to the inferior alveolar canal. Dr. A assessed the pain to be a function of difficulty in cleansing the area, with inflamed gingivae as a result. She suggested, while pointing to the panoramic, extraction, which she said, "shouldn't be too hard,” although it carried a "slight risk of a nerve injury which could leave P's lower lip and chin numb, and rarely be permanent." This conversation was documented with specificity in the chart. P had heard about impacted wisdom teeth from a few friends, so he asked whether his tooth was impacted. Dr. A replied, "No, it is not.” P wanted to think about it, so he left the office with a sample of an oral rinse and instructions as to how to improve his oral hygiene. A month later, the symptoms persisted, so P's mother called the office to schedule an extraction appointment.

Before having local anesthetic injected, P was handed a paper entitled "consent form,” which he and his mother "briefly read.” The document contained a list of potential risks, including a general statement about possible "loss of sensation.” P signed the document prior to the extraction going forward. Dr. A worked on the tooth for well over an hour, much longer than she had anticipated, cutting out pieces of tooth and trimming away bone using round and fissure burs. P could taste blood, particularly at one point, which caused Dr. A to pack gauze in his mouth. The following day, P awoke to find the right half of his lower lip and chin numb, which he did not find surprising, given the warning beforehand, but so was the right half of his tongue, which was a surprise. At post-op visits, Dr. A assured and re-assured P and his mother that feeling would return to normal — it never did.

Separately, P received a bill for Dr. A's services from her billing office, seeking a co-pay for "#32 7240.” The amount was significant, despite Dr. A's advertised plan participation, so P's mother questioned the office manager as to what all of this meant. The response was that, according to the insurance plan's rules, Dr. A was permitted to charge that amount for fully impacted wisdom teeth, as this was. P's mother replied that Dr. A had specifically advised her and her son that the tooth was not impacted, no less fully so. The office manager spoke with Dr. A, but the answer came back that, because Dr. A had to work so long to remove the tooth, she was not willing to make any adjustments.

P's mother contacted the insurance carrier to explain the situation. The carrier requested a pre-treatment radiograph from Dr. A, based upon which the in-house reviewers concluded that the tooth was not appropriately coded as 7240, but rather should have been 7210 (surgical extraction of erupted tooth). Under the plan provisions, Dr. A was therefore not permitted to charge any co-pay but instead accept the plan payment in full. When the insurer notified Dr. A of that, with a copy sent to P's mother (whose employer provided the coverage), Dr. A was steadfast that she was entitled to the amount billed and would send P to collection if she was not paid. P's mother did pay the claimed balance, but the carrier dropped Dr. A from the panel due to what it referenced as "upcoding resulting in excessive billing.”

Legal action

P had slowly been adapting to the lip, chin, and tongue numbness, but his mother remained upset about the principle of billing her son and threatening a collection action, so she contacted an attorney. The attorney was not very familiar with dentistry in any legal regard, so he reached out to his own dentist, with a copy of Dr. A's records that he had been provided, to help him interpret what was going on. The dentist agreed with the insurance company's position that the extraction had been inappropriately upcoded, but perhaps more importantly that it was clear from the records that, while P had been warned of the possibility of an inferior alveolar nerve injury and its effects, he had not been told anything about tongue numbness, which came from an injury to an entirely different nerve branch and which should have been avoided if proper technique had been employed.

The attorney initiated a lawsuit against Dr. A, asserting lack of informed consent relating to the lingual nerve injury, dental malpractice regarding the causing of the lingual nerve injury, and breach of contract leading to the improperly billed (and collected) co-pay amount. The defense attorneys assigned to Dr. A by her malpractice carrier reviewed the case with their client and advised her that they would seek expert opinion as to the substance of the informed consent and malpractice claims, but that she would not be covered for the breach of contract claim, per a clearly stated policy exclusion.

The expert retained by Dr. A's counsel was provisionally willing to present a defense as to the malpractice claim regarding her having negligently caused the tongue numbness, but that position would need to be re-evaluated following her deposition testimony. However, there was no evidence in the record to demonstrate that she had provided any warning of a potential lingual nerve injury and its impacts. The defense expert did not see a pathway to successfully defend the claim of lack of informed consent. A second expert reviewer reached the same conclusion.

Dr. A's attorneys had a candid discussion with her. Even if the malpractice claim could likely be effectively defended, the lack of informed consent claim could not. So, P would be entitled to a monetary award regardless of which, or both, of the claims went P's way in the eyes of a jury. Dr. A agreed to have her attorneys seek to settle the claim, to be paid by the malpractice carrier, which they did. As part of the settlement agreement, Dr. A would personally return to P the amount his mother paid her for the co-pay.

Takeaways

While it is impossible to know whether P would have sought an attorney at some point to file an action on his behalf based upon the substantive dental issues, it is quite clear that the issue which drove the initial attorney involvement was the billed, and eventually paid, co-pay amount. There is then perhaps a bit of irony that the money that Dr. A was unwilling to waive directly led to a settled malpractice claim, but that insisted-upon co-pay not only started the legal action steps but was also ultimately paid by Dr. A out-of-pocket. Dr. A made the decision to demand a disputed amount of money, and that decision likely cost her far more — particularly with her being dropped from a panel — than had she acquiesced in the first place. It is not our role here to advise dentists as to whether they should fervently go after unpaid, disputed fees. Instead, we demonstrate a situation where doing so ended up causing more harm than benefit. Food for thought.

Experience teaches that lay jurors might not always understand scientific, dental facts, sometimes making their determinations counter to what experts and attorneys anticipate. On the other hand, issues relating to overbilling or upcoding are relatively straightforward for plaintiffs' attorneys to explain to jurors, and simple for them to understand. At times, jurors might put all else aside and render a verdict for a plaintiff if they do not see the defendant-dentist as having been honest. Such is a version of jury nullification, with the jury members substituting what they deem critical in place of what the law says is critical. Taking subjectivity of that type out of the hands of juries increases a defendant's chances for success.

This case study exemplifies how the trigger for a patient seeking legal counsel might have nothing at all to do with the quality of dentistry. Yes, dentistry is complex, and there is an ever-present unpredictability factor, so ideal results do not happen with every procedure, with every patient. What need not be complex are matters over which dentists and their staff members have full control — such matters can virtually always be taken out of the equation as to what starts the legal ball rolling.

Finally, we briefly address the coding of procedures for billing purposes. The ADA and perhaps other associations provide numerical codes for dental procedures, which state the procedure performed and which often serve as the basis for which payment is sought and made. With few exceptions — such as 7241 for full impactions with unusual surgical complications, or time under sedation/general anesthesia, as examples — procedure codes do not take into account the length of time required to complete or the difficulty in doing so. To upcode to a procedure not actually performed, for a higher fee, is to invite a host of problems, including the initiation of a malpractice lawsuit or Dental Board complaint.

Summary of takeaways

A signed consent form alone is not enough — patients should be informed of all risks associated with a procedure, and those discussions should be thoroughly documented.
Billing disputes and inaccurate procedure coding can damage patient trust and may become the catalyst for malpractice claims.
Upcoding procedures can result in payer disputes, loss of network participation, regulatory concerns, and increased legal exposure.

[post_title] => Billing Dispute and Consent Issues Lead to Malpractice Lawsuit [post_excerpt] => [post_status] => publish [comment_status] => open [ping_status] => open [post_password] => [post_name] => billing-dispute-and-consent-issues-lead-to-malpractice-lawsuit [to_ping] => [pinged] => [post_modified] => 2026-09-06 22:05:30 [post_modified_gmt] => 2026-09-07 02:05:30 [post_content_filtered] => [post_parent] => 0 [guid] => https://oms.medprodental.com/?p=8065 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [2] => WP_Post Object ( [ID] => 8028 [post_author] => 180159417 [post_date] => 2026-07-30 11:15:03 [post_date_gmt] => 2026-07-30 15:15:03 [post_content] =>

In this real-life case study, oral and maxillofacial surgeons will learn how coding decisions and informed consent gaps can create significant liability risks. Discover why accurate billing, clear patient communication, and thorough consent discussions are essential risk management tools.

Key concepts

OMS sued following an upcoding dispute and nerve injury
How billing and coding decisions affect malpractice risk
The importance of documenting consent discussions beyond a signed form

Background facts

For Dr. C, an oral and maxillofacial surgeon, extracting teeth was an everyday part of practice. As the only oral surgeon within a 2–3-hour drive, she was a participating provider in a number of dental insurance programs which were more popular within her patient and referral bases.

One such patient, T, was an 18-year-old high school senior who self-presented based upon a network list, with a new complaint of periodic pain associated with the lower right third molar. Despite T being of majority, his mother accompanied him into the treatment room to see Dr. C. Following a clinical examination, a panoramic film was taken and viewed by Dr. C. Tooth #32 was erupted, had incomplete apex formation, but was still in close radiographic proximity to the inferior alveolar canal. Dr. C assessed the pain to be a function of difficulty in cleansing the area, with inflamed gingivae as a result. She suggested, while pointing to the panoramic, extraction, which she said, "shouldn't be too hard,” although it carried a "slight risk of a nerve injury which could leave T's lower lip and chin numb, and rarely be permanent." This conversation was documented with specificity in the chart. T had heard about impacted wisdom teeth from a few friends, so he asked whether his tooth was impacted. Dr. C replied, "No, it is not.” T wanted to think about it, so he left the office with a sample of an oral rinse and instructions as to how to improve his oral hygiene, particularly in that area of the mouth. A month later, the symptoms persisted, so T's mother called the office to schedule an extraction appointment.

Before having local anesthetic injected, T was handed a paper entitled "consent form,” which he and his mother "briefly read.” The document contained a list of potential risks, including a general statement about possible "loss of sensation.” T signed the document prior to the extraction going forward. Dr. C worked on the tooth for nearly an hour, much longer than she had anticipated, cutting out pieces of tooth and trimming away bone using round and fissure burs. T could taste blood, particularly at one point which caused Dr. C to pack gauze in his mouth. The following day, T awoke to find the right half of his lower lip and chin numb, which he did not find surprising, given the warning beforehand, but so was the right half of his tongue, which was a surprise. At post-op visits, Dr. C assured and re-assured T and his mother that feeling would return to normal — it never did.

Separately, T received a bill for Dr. C's services from her billing office, seeking a co-pay for "#32 7240.” The amount was significant, despite Dr. C's advertised plan participation, so T's mother questioned the office manager as to what all of this meant. The response was that, according to the insurance plan's rules, Dr. C was permitted to charge that amount for fully impacted wisdom teeth, as this was. T's mother replied that Dr. C had specifically advised her and her son that the tooth was not impacted, no less fully so. The office manager spoke with Dr. C, but the answer came back that, because Dr. C had to work so long to remove the tooth, she was not willing to make any adjustments.

T's mother contacted the insurance carrier to explain the situation. The carrier requested a pre-treatment radiograph from Dr. C, based upon which the in-house reviewers concluded that the tooth was not appropriately coded as 7240, but rather should have been 7210 (surgical extraction of erupted tooth). Under the plan provisions, Dr. C was therefore not permitted to charge any co-pay but instead accept the plan payment in full. When the insurer notified Dr. C of that, with a copy sent to T's mother (whose employer provided the coverage), Dr. C was steadfast that she was entitled to the amount billed and would send T to collection if she was not paid. T's mother did pay the claimed balance, but the carrier dropped Dr. C from the panel due to what it referenced as "upcoding resulting in excessive billing.”

Legal action

T had slowly been adapting to the lip, chin and tongue numbness, but his mother remained upset about the principle of billing her son and threatening a collection action, so she contacted an attorney. The attorney was not very familiar with oral surgery in any legal regard, so he reached out to his own dentist, with a copy of Dr. C's records that he had been provided, to help him interpret what was going on. This state did not require specialty-specific experts. The dentist agreed with the insurance company's position that the extraction had been inappropriately upcoded, but perhaps more importantly that it was clear from the records that, while T had been warned of the possibility of an inferior alveolar nerve injury and its effects, he had not been told anything about tongue numbness, which came from an injury to an entirely different nerve branch and which should have been avoided if proper technique had been employed. (As a side note, the general phrase in the consent form, "loss of sensation,” did not provide any expert reviewer with the specificity that is helpful in a defense.)

The attorney initiated a lawsuit against Dr. C, asserting lack of informed consent relating to the lingual nerve injury, dental malpractice regarding the causing of the lingual nerve injury, and breach of contract leading to the improperly billed (and collected) co-pay amount. The defense attorneys assigned to Dr. C by her malpractice carrier reviewed the case with their client and advised her that they would seek expert opinion as to the substance of the informed consent and malpractice claims, but that she would not be covered for the breach of contract claim, per a clearly stated policy exclusion.

The expert retained by Dr. C's counsel was provisionally willing to present a defense as to the malpractice claim regarding her having negligently caused the tongue numbness — but that position would need to be re-evaluated following her deposition testimony. However, there was no evidence in the record to demonstrate that she had provided any warning of a potential lingual nerve injury and its impacts. The defense expert did not see a pathway to successfully defend the claim of lack of informed consent. A second expert reviewer reached the same conclusion.

Dr. C's attorneys had a candid discussion with her. Even if the malpractice claim could likely be effectively defended, the lack of informed consent claim could not. So, T would be entitled to a monetary award regardless of which, or both, of the claims went T's way in the eyes of a jury. Dr. C agreed to have her attorneys seek to settle the claim, to be paid by the malpractice carrier, which they did. As part of the settlement agreement, Dr. C would personally return to T the amount his mother paid her for the co-pay.

Takeaways

While it is impossible to know whether T would have sought an attorney at some point to file an action on his behalf based upon the substantive oral surgery issues, it is quite clear that the issue which drove the initial attorney involvement was the billed, and eventually paid, co-pay amount. There is then perhaps a bit of irony that the money that Dr. C was unwilling to waive directly led to a settled malpractice claim, but that insisted-upon co-pay not only started the legal action steps but was also ultimately paid by Dr. C out-of-pocket. Dr. C made the decision to demand a disputed amount of money, and that decision likely cost her far more — particularly with her being dropped from a panel - than had she acquiesced in the first place. It is not our role here to advise oral surgeons as to whether they should fervently go after unpaid, disputed fees. Instead, we demonstrate a situation where doing so ended up causing more harm than benefit. Food for thought.

Experience teaches that lay jurors might not always understand scientific, dental/surgical facts, sometimes making their determinations counter to what experts and attorneys anticipate. On the other hand, issues relating to overbilling or upcoding are relatively straightforward for plaintiffs' attorneys to explain to jurors, and simple for them to understand. At times, jurors might put all else aside and render a verdict for a plaintiff if they do not see the defendant-dentist as having been honest. Such is a version of jury nullification, with the jury members substituting what they deem critical, in place of what the law says is critical. Taking subjectivity of that type out of the hands of juries increases a defendant's chances for success.

This case study exemplifies how the trigger for a patient seeking legal counsel might have nothing at all to do with the quality of surgery performed. Yes, oral surgery is complex, and there is an ever-present unpredictability factor, so ideal results do not happen with every procedure, with every patient. What need not be complex are matters over which surgeons and their staff members have full control; such matters can virtually always be taken out of the equation as to what starts the legal ball rolling.

Summary of takeaways

A billing dispute can quickly escalate into legal action, even when the original concern is not directly related to clinical care.
Accurate coding matters because upcoding or disputed fees can damage patient trust and increase liability risk.
Clear, specific informed consent documentation helps support a stronger defense if complications occur.

[post_title] => Coding and Consent Issues Result in OMS Malpractice Lawsuit [post_excerpt] => [post_status] => publish [comment_status] => open [ping_status] => open [post_password] => [post_name] => coding-and-consent-issues-result-in-oms-malpractice-lawsuit [to_ping] => [pinged] => [post_modified] => 2026-08-06 11:31:31 [post_modified_gmt] => 2026-08-06 15:31:31 [post_content_filtered] => [post_parent] => 0 [guid] => https://oms.medprodental.com/?p=8028 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) ) [post_count] => 3 [current_post] => -1 [before_loop] => 1 [in_the_loop] => [post] => WP_Post Object ( [ID] => 8086 [post_author] => 180159417 [post_date] => 2026-09-06 22:04:12 [post_date_gmt] => 2026-09-07 02:04:12 [post_content] =>

Key concepts

All-on-4 procedure leads to serious complication
Trusting your clinical judgment
Risk management lessons for implant dentistry

Background facts

Legal action

Takeaways

Summary of takeaways

External pressures should never outweigh clinical judgment when determining the most appropriate treatment plan.
Not every treatment option is suitable for every patient — anatomy, provider experience, and overall risk must be carefully evaluated before proceeding.
When complications occur, treatment decisions that fall outside the standard of care can increase liability exposure and lead to malpractice claims.

[post_title] => All-on-4 Implant Procedure Leads to Malpractice Claim Against OMS [post_excerpt] => [post_status] => publish [comment_status] => open [ping_status] => open [post_password] => [post_name] => all-on-4-implant-procedure-leads-to-malpractice-claim-against-oms [to_ping] => [pinged] => [post_modified] => 2026-09-22 09:48:03 [post_modified_gmt] => 2026-09-22 13:48:03 [post_content_filtered] => [post_parent] => 0 [guid] => https://oms.medprodental.com/?p=8086 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [comment_count] => 0 [current_comment] => -1 [found_posts] => 63 [max_num_pages] => 21 [max_num_comment_pages] => 0 [is_single] => [is_preview] => [is_page] => [is_archive] => 1 [is_date] => [is_year] => [is_month] => [is_day] => [is_time] => [is_author] => [is_category] => 1 [is_tag] => [is_tax] => [is_search] => [is_feed] => [is_comment_feed] => [is_trackback] => [is_home] => [is_privacy_policy] => [is_404] => [is_embed] => [is_paged] => [is_admin] => [is_attachment] => [is_singular] => [is_robots] => [is_favicon] => [is_posts_page] => [is_post_type_archive] => [query_vars_hash:WP_Query:private] => d1c77c7989d1c488b0f966bf56501a71 [query_vars_changed:WP_Query:private] => [thumbnails_cached] => [allow_query_attachment_by_filename:protected] => [stopwords:WP_Query:private] => [compat_fields:WP_Query:private] => Array ( [0] => query_vars_hash [1] => query_vars_changed ) [compat_methods:WP_Query:private] => Array ( [0] => init_query_flags [1] => parse_tax_query ) [query_cache_key:WP_Query:private] => wp_query:a5a8a79d3786ea024b26a813eb6933da )

Additional Risk Tips content

All-on-4 Implant Procedure Leads to Malpractice Claim Against OMS

Explore an OMS malpractice case study involving an All-on-4 implant procedure, surgical complications, clinical judgment, informed consent, and risk management lessons for implant dentistry.

Billing Dispute and Consent Issues Lead to Malpractice Lawsuit

See how a billing dispute, upcoding concerns, and informed consent gaps led to a dental malpractice lawsuit and costly legal consequences.

Coding and Consent Issues Result in OMS Malpractice Lawsuit

Learn how upcoding disputes and informed consent gaps can lead to OMS malpractice claims, patient distrust, and legal action.

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.