Practice More Safely // Risk Tips // Food Allergies Cannot Be Ignored; They Might Have a Life-Threatening Effect Upon Treatment

Food Allergies Cannot Be Ignored; They Might Have a Life-Threatening Effect Upon Treatment

Marc Leffler, DDS, Esq.
July 28, 2025

Reading time: 8 minutes

Oral and maxillofacial surgeons (OMS) should take careful note of all allergies reported by patients, including those which are food-related. In this case study, a patient who reported an allergy to cherries develops cognitive deficits as a result of a severe allergic reaction to an ingredient in the topical anesthetic used by the OMS, which was the same allergen found in cherries. Later, the patient accuses the OMS of negligence.

Key Concepts

Office protocols to decrease the incidence of preventable errors
Disagreement between opposing litigation experts
Evaluating all aspects of a patient’s medical history

Background Facts

B, a 37-year-old woman, was referred to a local oral and maxillofacial surgeon, Dr. P, for the extraction of a fractured upper first molar. In the waiting room, B completed a medical and surgical history form, noting only a C-section delivery and an allergy to maraschino cherries. In responding to questioning about the reported allergy, B explained that, twice, she broke out with hives and generalized itching – with the second event being worse than the first after eating a cherry that was placed into her usual, go-to drink, an Old Fashioned.

Dr. P entered the treatment operatory where B was seated, and explained that he would use a local anesthesia injection to numb the area, and then extract the broken tooth. Dr. P anticipated it would be a quick and straightforward procedure. After discussing risks, alternatives, and benefits, Y agreed to go forward.

Dr. P placed a cotton-tip swab of watermelon-flavored topical anesthesia into the mucobuccal fold, and left it in place for close to 2 minutes, before removing it and injecting a short-acting local anesthetic at the same location. Dr. P told B that he would give the anesthetic a few minutes to take effect, while he looked in on another patient, before treating her. The dental assistant began to set up the surgical tray, while making small talk with B, with her back to B. When the assistant noticed that B had stopped speaking with her, she turned to look at B and saw her face and neck were turning red, so she asked B how she was doing. B responded that she was not feeling well, sensing swelling in the back of her mouth and difficulty breathing.

The assistant immediately went to the adjacent treatment room where Dr. P was speaking with another patient. She did not want to interrupt the conversation, fearing that explaining her concerns would alarm that patient and cause Dr. P to be upset with her, she waited until the conversation ended before telling Dr. P that he needed to come to see B. Dr. P found B to be “barely conscious” struggling to breathe. He instructed the assistant to call 911, as he placed the nasal hood from the N2O/O2 setup over B’s nose, but the system had not yet been turned on for the day so no oxygen flowed until Dr. P was able to manipulate the valve to allow oxygen to flow. But B continued not to breathe, so Dr. P adjusted the dental chair to a supine position and manipulated B’s head to try to open the airway, but her chest still did not rise.

Dr. P began mouth-to-mouth resuscitation, with little apparent effect, until paramedics arrived and intubated B, thereby allowing oxygen into her lungs. Based upon communications with hospital personnel, epinephrine and corticosteroids were administered before transport to that hospital. B survived, but she claimed distinct cognitive deficits, later confirmed by a neurologist, which greatly impacted various facets of her life, including her occupation. The neurologist attributed those deficits to a transient oxygen deficit.

Legal Action

With the aid of her family members, B sought and retained an attorney to explore her options. The attorney gathered the records of Dr. P (including the documentation that accompanied the topical anesthetic agent) – the ambulance team, the hospital, and the neurologist – and passed those on to oral surgery and medical reviewers.

The potential oral surgery expert learned that the topical anesthetic contained red dye #40, which is also found in maraschino cherries, and which is known to act as an allergen in certain people. The expert opined that Dr. P had been negligent in failing to adequately explore the patient’s reported allergy in the context of using a topical anesthetic which also happened to be red. When the attorney inquired of the expert whether such an ask of Dr. P was beyond the limits of reasonable foreseeability to constitute a violation of the standard of care, the expert responded that allergies can have such a significant and detrimental effect that no reported allergy should go without at least a reasonable investigation, especially when the only treatment at issue is clearly non-emergent. The expert was also of the opinion that Dr. P had failed to establish a proper office protocol to encourage his staff to interrupt anything if a patient’s immediate health might be at stake. Finally, the expert criticized Dr. P for leaving the patient unattended – except for a dental assistant whose primary duty at the time was to prepare for a procedure rather than to observe the patient after delivering the topical and local anesthetics.

The medical expert stated full agreement with the neurologist as to the cause of B’s cognitive deficits, and further attributed the transient oxygen deficit to the allergic reaction B experienced and to the delay in addressing it.

Finally, the attorney consulted with an occupational expert who personally evaluated B, interviewed her work supervisor, and looked at her relevant medical records. This expert opined that B no longer had the cognition required for her prior and still current position, and that, without a kind and understanding set of supervisors, B would not be able to maintain her job. However, she would not be able to advance to the extent that her prior work reviews anticipated for her, thereby depriving her of a substantial amount of income over her projected work life.

A suit was filed against Dr. P and his practice. Defense counsel was assigned by Dr. P’s malpractice carrier to defend Dr. P. After initial reviews of documents and interviewing Dr. P, they obtained the reviews of similar types of experts as had become involved on behalf of B. The oral surgery expert was generally in agreement with B’s oral surgery expert, except that she disagreed with it being a standard of care violation to leave the treatment room while local anesthesia was taking effect, saying, “that’s what just about everyone does”. The medical and occupational experts retained by defense counsel concluded almost exactly as did their counterparts.

Dr. P had been personally devastated by these events since they took place and did not want to fight B on the legal front. He encouraged his attorneys to do whatever they could to resolve the case without putting B and him through a courtroom battle. They did just that, and because a resolution came so early in the litigation, before B’s legal team had spent large amounts of money, an amount of settlement money that all involved thought to be fair and reasonable was agreed upon.

Takeaways

Addressing the final legal issue above first, the OMS’s personal input is an important factor in how he wishes to proceed in litigation. The OMS will have the option of either (1) defending his actions before a jury at trial, or (2) electing to consent to settle the lawsuit, thereby giving his insurance company the ability to determine whether early resolution of the lawsuit via settlement in lieu of proceeding to trial is the better option. Another factor sometimes considered is that of sympathy. While judges will generally instruct jurors that they are to exclude sympathy from their deliberations and verdicts, the human mind of those jurors might well be unable to make that exclusion, even unknowingly, as hard as they might try to do so.

Considering the major point of expert criticism against Dr. P, that of investigating all reported allergies, a larger tent within which to view this is that it is the obligation of oral surgeons to appropriately explore all aspects of the patient’s stated medical history to the point that the oral surgeon has a clear understanding that the planned treatment will be able to be performed safely, in all respects. Sometimes that exploration involves the oral surgeon becoming (re)familiar with the conditions presented. Sometimes it involves a phone call to a medical colleague or two to discuss the patient’s issues and potential fallout, and sometimes it means referring a patient to a physician, whether it’s their own established practitioner or one of the oral surgeon’s choosing. Whichever way an oral surgeon elects to assure patient safety, the critical end point is that patient safety must be assured.

This case demonstrates a number of circumstances that led to delays in the treatment of B, once the emergency came about. One of those which was addressed by B’s expert was that of failing to establish an office protocol such that a staff member can quickly and comfortably alert the oral surgeon to a problem that requires immediate attention. An approach – but by no means the only approach – to enable the communication of a serious concern without disturbing other patients is to set up a code word to be used between dentists and staff that indicates the need for prompt attention. We suggest using a word not commonly used in everyday interactions, such as “Saskatchewan” or “marmalade” (or any other term agreed upon), which is never spoken in the office except in emergencies. A second issue raised by B’s expert was the immediate unavailability of oxygen, here due to the valve not having been opened before patients started to be seen that day. Oxygen is an important emergency drug, so it is more than appropriate for it to be ready to be used with virtually no notice. The same approach might be employed for other drugs and/or equipment that play a crucial role in emergency care.

Finally, we note the disagreement between experts regarding the propriety of an oral surgeon leaving the treatment room while waiting for local anesthesia to take effect before starting the procedure. Disagreements among experts are the norm, rather than the exception, so matters of judgment should be exercised with due thought, weighing all considerations, and having a willingness and ability to defend the choice – not based upon “this is what I always do,” but instead, “this is why I do that.” The former carries little jury weight, while the latter sends the message of professionalism.

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

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.

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 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.

In this real-life case study, oral and maxillofacial surgeons will learn why informed consent is a critical part of surgical risk management—not just a formality. Understand how consent gaps, documentation limitations, and differing standards of care can affect malpractice claims, especially for newer practitioners or those working outside their own offices.

Key concepts

Why informed consent is more than a formality
How consent gaps can lead to malpractice claims
The importance of documenting surgical risk discussions

Background facts

Dr. G was an oral and maxillofacial surgery resident, in the third of six years of training. She spent most of her current time on off-service rotations, so she was able to moonlight outside of the hospital, which was a practice permissible in her program. To properly protect herself, Dr. G obtained malpractice insurance, which allowed for part-time non-resident work; inasmuch as she was not yet an oral surgeon, her premium was set as would be done for a general dentist performing oral surgery.

On a typical day in the busy, urban dental office, Dr. G generally treated between 10 and 15 patients, performing the extraction of impacted and non-impacted teeth, with an occasional root resection, apicoectomy, or biopsy. R, a 22-year-old man, presented with an episodically symptomatic, deeply impacted lower left third molar; he was directed to see Dr. G for evaluation and potential treatment. On the panoramic film that Dr. G reviewed, tooth #17 was fully imbedded in bone, with a mesioangular inclination so as to create a clinically-evident periodontal defect on the distal aspect of the adjacent second molar. Dr. G suggested to R that the wisdom tooth be extracted, with a bone graft placed into the socket. Because of the radiographic relationships that were visible and noted, clear warning was given about the realistic potential for left inferior alveolar nerve injury, and those effects, but little else was provided in terms of risks, even according to Dr. G's chart entry. The office had no written consent forms.

Under local anesthesia, Dr. G sectioned the tooth, taking note as she proceeded of the angulation of the crown toward the lingual. Exercising appropriate care to surgically stay away from the lingual plate and gingiva, the tooth was removed in sections, seemingly uneventfully; but as the crown portion was elevated out, what appeared to be an intact lingual nerve became visible immediately above the height of bone. The site was carefully debrided and irrigated, with a small amount of bone graft material placed just behind tooth #18. Because of Dr. G's hospital schedule, she knew that she would not be able to return to the office for 2 weeks, so she placed a chromic gut suture and advised R to return if he had any problems. Dr. G wrote a detailed chart entry, chronicling every surgical step and including her findings regarding the lingual nerve.

R never returned, and nobody from the office, including Dr. G, attempted to contact him: because of the large patient volume, post-treatment calls were not very feasible, given the few administrative staff members.

Legal action

No word was heard from or about R until the office received a letter, some 10 months after treatment, from an attorney representing R. The letter requested complete copies of R's records; the office complied but did not inform Dr. G of the request or compliance. Approximately 3 months later, a process server appeared at the hospital's oral surgery clinic and handed Dr. G a copy of the papers initiating a lawsuit against her. The Complaint alleged professional negligence — dental malpractice — for improper surgery that resulted in left-sided tongue numbness and taste loss, as well as lack of informed consent. After gathering her thoughts, she contacted her malpractice insurance carrier, forwarded what she was given, asked the office to forward to her carrier a copy of R's office records, and was ultimately contacted by the attorneys hired to represent her.

In the first lawyer-client meeting, the litigation process was discussed with Dr. G. In turn, Dr. G described her surgical technique, as had been documented, which sounded "textbook" to her attorney, who was well-experienced in defending dental malpractice cases. The attorney expressed concern about there being no written consent form, compounded by the limited statement of risks in the chart entry, which ignored injury to the lingual nerve and, by extension, the chorda tympani. At the conclusion of the meeting, the attorney discussed his next immediate steps, which included obtaining a very preliminary expert review from a general dentist who performed many extractions. (The State in which the lawsuit was filed required that all experts be of the same area of practice as the defendant; because Dr. G was still in training, she was a general dentist.)

Pending depositions and other discovery, the potential expert supporting Dr. G was of the opinion that her description of the surgery lacked any defects, with the resulting injury being a function of the anatomic relationships at play, namely the tilt toward and proximity of the crown to the lingual nerve complex. As to the issue of lack of informed consent, the expert's opinion was that, in the world of general dentists, although not oral surgeons, written consent forms for surgical procedures were the exception rather than the rule, and risk discussions by general dentists, although not by oral surgeons, were usually quite limited, with Dr. G's documented risk statement falling well within that general-dentist-based parameter.

Discovery proceeded with no surprises and no changes in defense expert opinion. All involved prepared for trial, with disclosures of anticipated expert testimony shared. On the first day of trial, but before seating the jury, R's (plaintiff's) counsel made a motion in limine — a pretrial request to exclude certain testimony or other evidence — to bar Dr. G's expert from setting forth standards of care, regarding surgical technique, informed consent, or otherwise, that were different as between general dentists and oral surgeons. If successful, Dr. G's expert would not be able to argue that Dr. G, as a general dentist (in reality), should not be held to meet the informed consent standard of care of oral surgeons regarding written consent forms and the extent of surgical risks discussed with R.

The trial judge ruled that Dr. G's expert would not be able to draw the distinction planned between oral surgeons and other dentists. In short, the court said that it is the procedure, not the practitioner, that carries the standard of care. Allowing for such differences would prejudice patients such that those having surgery performed by dentists who are not oral surgeons would essentially be signing on to a lesser level of care, which would not be proper. Dr. G remained confident that she had performed the surgery appropriately in all respects, but she understood the implications of the court's decision as it related to her obtaining of informed consent from R, namely that her process did not meet the standard for the procedure. She agreed to try to reach a settlement, and that was accomplished before the first words were spoken at trial.

Takeaways

The ruling by the judge in this isolated case is one that is quite commonly, although not necessarily universally, adopted by courts. As stated here, the basis for that is the protection of patient safety, a frequent theme of many court decisions on any number of issues. The lesson, though, is clear: any practitioner who undertakes any procedure should understand that their actions in doing so will be held to the standards of experienced practitioners with focused training. Oral surgeons might well read this concept and reason that it does not affect them, given their superior training; but the application to oral surgeons is most relevant to newer practitioners who, despite their strong academic backgrounds, simply do not have very much in-practice experience. That comes with time and repetition, with a learning curve to get there.

As we have discussed in other case studies, the impact of lack of informed consent is often underestimated, but it ought not be that way. Here, Dr. G committed no malpractice surgically, at least as the description describes, but the informed consent process fell short, with that alone leading to a result for the plaintiff. The informed consent process is far more than just a throwaway to check off a box, but rather an integral part of surgery, with ramifications of deficiencies having the same ultimate litigation effect as negligently carried out surgery.

While this case study does not directly address the propriety of a panoramic radiograph as compared with a 3-D imaging study such as a CBCT, it is the proverbial elephant in the room. It would be hard to disagree with the concept that 3-D imaging is preferred so as to help in identifying anatomic relationships and potential hazards. But whether use of a CBCT constitutes standard of care will ultimately boil down to dueling opinions of experts for the plaintiff and the defendant, both subject to cross-examination. Standards of care are not published, but if they were, it would be unlikely to see such a publication make its way into trial evidence, for the reason based upon the age-old attorney mantra that a lawyer cannot cross-examine a piece of paper. As of this point in time, opposing experts strongly sit on both sides of the issue regarding the type of imaging appropriate for a given situation, and that is where the world of litigation will remain, at least for the near future. Oral surgeons would do well to determine for themselves what their judgment of choice is, and have a solid line of reasoning to support it.

Moonlighting residents and newer oral surgeons who travel between offices, often not their own, face a number of challenges to go along with the benefits. Weighing them has surgical-legal implications that might not become apparent until years after the fact.

Summary of takeaways

Practitioners are held to the standard of care for the procedure performed, regardless of their training level or practice designation.
Informed consent is a critical part of surgical care, and deficiencies in the process can carry significant malpractice risk.
Oral surgeons, residents, and traveling practitioners should carefully evaluate imaging decisions, documentation practices, and office processes before performing procedures.

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In this real-life case study, oral surgeons will learn how strong emergency preparedness can make a critical difference during an in-office sedation event. See how regular drills, clear protocols, and a well-trained team supported an effective response—and why even a small compliance oversight can still lead to Board action and public sanctions.

Key Concepts

How emergency drills and clear protocols support responses
What oral surgeons can do to strengthen sedation preparedness
Small compliance gaps can lead to sanctions

Background facts

Drs. J and E are board-certified oral and maxillofacial surgeons, partners for many years in a 2-office practice with locations nearly 10 miles apart, so they were rarely, if ever, at the same office at the same time. Both offices were well-staffed, administratively and at chairside. As a matter of policy, 2 assistants were always in the treatment room with the doctor whenever a patient was sedated to any degree, with one of them suctioning and retracting at and near the surgical site, and the other helping to maintain the airway and watching, recording and reporting on monitors; all of the assistants had been employed in these offices for years, so they were fully familiar with the procedures.

N was a 53-year-old man with a stated medical history to include hypertension (reasonably well managed on an Angiotensin blocker), and "occasional skipped beats"; he was overweight but not obese, with a BMI of 29.2. Dr. J classified him as an ASA II. At his consultation visit in advance of the placement of 2 lower left implants, he told Dr. J that he was nervous about it, so he wanted "to be asleep.” Dr. J said that she would relax him with IV medications and nitrous oxide. On the day of surgery, N presented NPO, with a blood pressure of 145/82, a pulse rate of 76, a respiratory rate of 14, and a normal sinus rhythm.

Once seated in the chair and attached to a full array of monitors, Dr. J placed nasal prongs through which N2O/O2 was delivered and titrated IV Versed and Fentanyl through a butterfly placed in the antecubital fossa. N became somnolent, so Dr. J gave a total of 2 carpules of a local anesthetic with 1:100,000 epinephrine, by way of a left mandibular block and buccal infiltration. N's pulse began to elevate quickly, reaching 110, and then 130, all within 2 minutes. Dr. J then interpreted the EKG to read ventricular tachycardia, with no palpable pulse, at which point she readied the defibrillator and applied the pads and leads; the machine read the rhythm as ventricular fibrillation and called for a shock, which was done and then repeated per the machine's instruction. N regained a more normalized pulse quickly, although fluctuating at numbers well above 100, but he was responsive to noxious stimuli. A staff member called 911 at Dr. J's request; EMTs appeared in short order, took control of the situation, and transported N to the nearest hospital, in relatively stable condition.

N underwent a complete cardiology work-up, after which he was discharged to his home several days later. The cause for the in-office event was not specifically determined, but he was medically followed closely and made significant lifestyle changes.

On the day of N's incident, Dr. J cancelled her remaining patients and met with her staff for the entire afternoon, reviewing what had occurred and how each staff member performed their tasks, as had been pre-determined and rehearsed on a yearly basis. The office protocols for medical emergencies remained unchanged, other than an agreement to increase the frequency of emergency drills to twice each year. Pursuant to state regulations that required self-reporting to the Dental Board if a dental patient was hospitalized within 24 hours of treatment, Dr. J submitted the required information and subsequently provided a complete copy of all pertinent records upon receiving a HIPAA-compliant authorization.

Legal actions

N never returned to the office for implant placement, and he did not respond to repeated calls and emails. Months later, Dr. J was surprised to receive a notice to appear before the Dental Board's investigative committee. Upon notifying her malpractice carrier, counsel was provided to her, per the terms of her policy. In advance of the appearance, Dr. J provided the requested list of all employees present, as well as their relevant backgrounds.

At the appearance and beyond, the Board had nothing but praise for the way that Dr. J and her staff responded to the event and documented it, additionally commenting upon the fact that regular drills were conducted with all office staff present. But there was one deficiency that the Board members found and pointed out: the state required that all staff members present in the treatment room while parenteral sedation was administered must be currently certified in CPR, and one of the assistants' certifications had lapsed a few months prior. As such, a fine, albeit nominal, was levied against Dr. J for violating this regulatory provision; the sanction was publicly posted, as was the practice for this committee.

Dr. J's attorney appealed the decision, arguing that, given the specific circumstances, CPR was not required to have been performed, no less by the assistant who was delinquent, so the issue was moot in this situation. The Board's committee was unmoved, responding back that the point was not one of how a particular incident played out, but rather an overall preventive approach. The sanction remained in place.

Takeaways

History has shown that the most critical predictive factor for morbidity and mortality in an in-office sedation/general anesthesia situation is patient selection. While practitioners might disagree, and while certain states might limit who is permitted to sedate groups of patients based upon their ASA classifications, and in fact whether some patient groups may be sedated at all, the reality comes down to somewhat subjective analyses regarding where to categorize patients based upon their conditions and physical attributes. Moreover, practitioners' opinions as to whether medical consultation prior to sedation is required—or even advised—based upon underlying factors, will vary. In the end, prudence dictates a patient-protective approach, erring on the side of conservatism each and every time; of course, what constitutes being conservative will differ based upon a host of factors, leading to a determinative clinical judgment. Practitioners should be able to justify those judgments before they act, because they might have to justify them later on to a Board or a jury panel.

Regardless of what a patient might want and even insist upon—for example, a level of sedation or, in fact, sedation at all—practitioners should not be pushed into performing any treatment that they do not believe is in the patient's best interest. As the saying goes, patients can properly refuse absolutely anything, all day long, but they cannot be permitted to demand and have that demand carried out.

Focusing first on the positives of the approach in Dr. J's office, the importance of conducting drills to prepare for foreseeable types of emergencies cannot be overstated. Doing so avoids situations when, in the "heat of battle,” oral surgeons and their staff members are forced to look around the office for emergency equipment or try to figure out how it works. Plainly stated, there is no substitute for preparedness, as this case exemplifies, despite the administrative misstep that guided the Board's decision-making: it is a fair conclusion that N survived because of that attentiveness to detail, well before N became a patient of the office. Here, Dr. J took the additional proactive step of a post-event assessment with the entire office, while things were still fresh in the minds of everyone.

Finally, we address the basis for the Board's levying of sanctions here, which some readers might find disturbing. Compliance with state regulations is the responsibility of every practitioner, with the predicate to that being a knowledge and understanding of what those regulations are. Analyses of Dental Board matters are replete with examples of serendipitous findings of administrative deficiencies in dental offices, with sanctions that follow as a result. In the general eyes of Boards, the significance of those deficiencies to the issues that brought a circumstance before them for review are entirely irrelevant. Office protocols to assure conformity with state mandates are absolute necessities.

Summary of takeaways

Strong emergency preparedness, regular drills, and clear team roles can make a critical difference when a sedation complication occurs.
Even when an office responds appropriately and the patient outcome is favorable, overlooked compliance requirements can still lead to Board sanctions.
Oral surgeons should regularly review sedation protocols, staff credentials, and regulatory requirements to reduce risk and strengthen practice readiness.

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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

Legal action

Takeaways

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.

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Additional Risk Tips content

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.

Informed Consent Shortfall Leads to OMS Malpractice Claim

Oral and maxillofacial surgeons can learn how informed consent gaps, documentation issues, and procedure-based standards of care may contribute to OMS malpractice claims.

How a Strong Emergency Response Still Resulted in a Fine

Strong emergency response and regular drills helped during a sedation crisis, but one compliance gap still led to Board 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.

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