Implant Failure Leads to Liability Dispute

Background Facts

D was a 72-year-old man who had worn a double-distal-extension mandibular removable partial denture (RPD) for many years, having lost all of his lower molars at various times in the past. From a health background perspective, D had type II diabetes, treated with diet management and oral hypoglycemic medications (A1c range 6.8%-7.3%), mild and well-controlled hypertension, and was a “social” pipe smoker. D had become increasingly dissatisfied with the fit and masticatory function of his prosthesis, so he presented to his longtime general/restorative dentist, Dr. R, looking for an alternative to what was in place.

After examining D radiographically and clinically, Dr. R viewed her patient as a suitable candidate for the placement of two endosseous implants in each lower posterior region, which would later be restored by placing fixed bridgework bilaterally. Dr. R did not surgically place implants as part of her practice, but she had much experience restoring them. So, she referred D to an oral and maxillofacial surgeon (Dr. O), with whom she often worked, to evaluate D for placement of the four planned implants.

Dr. O performed a CBCT study to go along with his clinical examination, reaching the determination that the treatment plan tentatively established by Dr. R was a viable one. Dr. O thoroughly discussed the “typical” risks of implant cases – both surgically and restoratively – with D. Dr. O particularly emphasized the potential for loss of the implants and/or the restorations placed upon them, explaining that diabetes might elevate the risk of non-healing, and that pipe smoking might add to that elevated risk. With that in mind, and based upon Dr. O’s suggestion, D agreed to refrain from smoking his pipe until the entire case was completed. The informed consent process was memorialized in writing.

After receiving implant location input from Dr. R, Dr. O uneventfully placed four mandibular implants, all of which had a 4mm width and were at least 12mm in length. Dr. O planned to and did follow D at regular intervals for five months, at which time he determined that all of the fixtures had healed well and were ready to be restored. Dr. R then began the restorative process. Seven months after the initial placement surgery, Dr. R placed bilateral 4-unit bridges, employing the implants and both lower second premolars as abutments. Dr. R thoroughly discussed and demonstrated specific oral hygiene instructions so that D knew exactly how to maintain his new prostheses.

From D’s first post-placement visit to Dr. R, and continuing into subsequent visits, it was apparent that plaque was not being adequately cleaned away from the areas of treatment, with worsening gingival inflammation, despite repeated advice from Dr. R and her hygienist that D needed to improve his home care. During one of those visits, D was asked about whether he was refraining from pipe smoking, and he candidly acknowledged that while he had done so for about six months after implant placement, he had re-started occasionally doing so thereafter. D was re-instructed regarding the need to continue to refrain.

Over the next months, radiographs demonstrated progressive bone loss with eventual mobility of the once-stable bilateral bridges. Dr. R and O jointly determined that the implants had failed and were in need of removal. Dr. R sectioned the implant-supported portions of the restorations from the crowns on the lower premolars, the latter of which remained stable and serviceable, after which Dr. O extracted the implants with their attached restorations. D expressed his displeasure to both practitioners, explaining that he spent an amount of money very significant to him, but that he did not receive the “product” for which he had paid. Neither practitioner was able to find any aspect of the case which was improperly conceived or performed – both of the treating doctors provided that same explanation to D. Dr. R offered to fabricate a new RPD, similar in design to what he originally had and offered to do so at a reduced fee, but D refused, instead demanding that all of the fees he paid be refunded to him. Both Dr. R and Dr. O declined.

Legal Action

D retained an attorney who had experience litigating dental malpractice actions. As was required in the state in which the treatment took place, the initiation of litigation was preceded by the attorney hiring a dental expert, whose practice included both the placement and restoration of implants. That expert authored an affidavit which accompanied the court Complaint, as was statutorily mandated. The thrust of the affidavit was that “both Dr. R and Dr. O had to have erred in their treatments in order for all of the implants to have failed, because it would otherwise have been an extraordinarily rare set of circumstances, beyond reason and expectation.”

In response, the attorneys provided by both doctors’ (now defendants’) malpractice carrier each employed a litigation approach not often used, namely to make motions for dismissal in lieu of the usual denials of wrongdoing included within an Answer. The motions both incorporated similar opposing expert affidavit concepts: (1) that the plaintiff’s expert’s language in the affidavit, that the defendants “had to have erred”, is speculative, not pointing out any specific areas of negligence, but instead backwardly assuming impropriety in the process based upon an unsatisfactory result; and (2) that the plaintiff’s own underlying conditions and inappropriate actions – diabetes (which was not under full control, thereby making healing potentially less ideal), inadequate oral hygiene, and smoking – were, alone or together, the basis of failure.

The court rejected the defendants’ second concept, labelling it as being as speculative as the plaintiff’s sole theory, but ultimately dismissed the case because of the speculative nature of the plaintiff’s claim (“had to have erred”, rather than “did err”), thereby failing to meet the necessary standard of proof to permit a case to move forward through the litigation process.

Takeaways

There is no question that the failed implant/restorative case presented here constitutes an injury, if not physically, then certainly financially. But, as we have discussed in other case studies, a plaintiff can be successful only when an injury – virtually any injury – is directly caused by negligent (inappropriate, non-standard-of-care, or other synonymous term) treatment. That negligent treatment, as well as its causal connection to injury, must be demonstrated by the plaintiff’s expert, as more likely than not to be the situation. When the plaintiff fails to meet that legal burden, at any step along the litigation way, the defendant prevails, as the plaintiff’s case will be dismissed. The message in this regard is that, while an injury is a necessary element of a case in professional malpractice, it is only one of three necessary elements, all of which must be proven by the plaintiff in order for it to survive and proceed.

Dental practitioners might well disagree as to the role, if any, of diabetes, poor hygiene, and/or smoking in the failure of clinical cases like the one presented here. And disagreements like those are what make malpractice litigation “battles of experts” with differing opinions. In most jurisdictions, experts are generally given wide latitude regarding the bounds of the opinions they render, so long as they do not venture into areas of “junk science,” meaning espousing views that are completely not accepted by the dental community – separate hearings are held when issues of that type arise.

Factually embedded here is that both of these practitioners were insured by the same carrier, yet both had separate attorneys. This is far from an unusual event. Even though multiple defendants have a common insurer, if there is any reasonable likelihood that those co-defendants might, throughout their defense, take differing approaches which could be at odds with each other, the assignment of different counsel is provided so as to avoid any conflict of interest. In this case study, the defendants presented a united front, even though they had separate counsel, which deprived the plaintiff and his attorney of a too-frequent plaintiff’s attorney’s “dream” – a finger pointing exercise between various defendants, which almost invariably inures to the benefit of the plaintiff.

Finally, we note the prudent approach of Dr. R, who referred D to Dr. O to be evaluated, rather than to be treated. While the evaluation of D did ultimately lead to treatment by Dr. O, referring to a specialist for an evaluation leaves the decision-making process, regarding whether or not to perform the treatment suggested by the referrer, entirely in the hands of that specialist. So, in situations where multiple defendants do become adversarial with each other, the prior independent determination by the specialist will likely end up being most protective of the doctors on both sides of the referral relationship.

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.