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Lack of Detail in Chart Entry Hinders OMS’s Malpractice Defense

Case Study

Marc Leffler, DDS, Esq.
July 28, 2025

Reading time: 7 minutes

Oral and Maxillofacial Surgeon examining an x-ray.

In oral surgery, documentation is an essential element of practice, not only for accurate treatment but also for risk management. In this case study, the lack of detail in an oral surgeon’s chart entry denoting a patient’s treatment impacts the outcome of a malpractice case brought against her.

Key Concepts

How documentation can prevent risk
Staff education and management
What to include in chart entries
The role of mediation in litigation

Underlying Facts

G, a 42-year-old man, presented to an oral and maxillofacial surgeon, Dr. A, upon referral from his general dentist with a recent and ongoing complaint of pain while biting down on his “lower right back teeth.” Dr. A clinically examined her patient and found the first molar, tooth #30, to be exquisitely tender to percussion and sensitive to palpation in the mucobuccal fold, where slight swelling existed. Radiographically, #30 had an older 3-surface restoration which appeared very close to the pulp chamber, with recurrent decay; the periapical area adjacent to the mesial root showed some minimal radiolucency, but Dr. A was not entirely certain as to whether that represented a true early lesion or an artifact. Pulp testing results were equivocal.

After explaining to G what she saw his options to be, Dr. A, with G’s approval, prepared to extract tooth #30. Dr. A says that she then went on to discuss the risks and benefits of treatment. With local anesthesia, Dr. A completed the extraction, taking a radiograph following the procedure. Dr. A’s chart note for the visit read, in its entirety, “Ext #30 with local.”

Two days later, G called the office, complaining about increased pain and mild swelling. Dr. A was not in the office, so the receptionist told G that these were expected to occur and asked G to come to the office in 5 days, as previously scheduled. Two more days after that, G noticed a further increase in swelling and some swallowing difficulty, so, on the advice of a family member, he went to a local hospital emergency department. Following a work-up, G was admitted with a submandibular space abscess, placed on IV antibiotics, and taken to the operating room for a submandibular incision and drainage and socket debridement under general anesthesia. He remained intubated in the surgical ICU for a day and was then transferred to a hospital room following extubation, where he continued to improve until discharge in 3 days. Soon thereafter, G returned to his general dentist, who advised G that, because of the local loss of alveolar bone from the infection, he was not a candidate for an implant but would instead need a fixed 3-unit bridge to replace the lost tooth. The bridge was fabricated without complication, and G remained comfortable and able to function well. He did, however, have 2 extraoral scars near the right inferior border of the mandible, which caused him to be self-conscious.

Legal Action

G wanted to explore the potential of suing Dr. A for dental malpractice, so he retained an attorney to look into the possibility. As soon as records were gathered, the attorney forwarded them to an oral surgeon who was experienced as an expert witness in dental legal matters. The expert commented that he was “appalled” by the brevity of the chart entry, saying that it gave literally no information about how the procedure was planned for and performed. The attorney knew that this also meant that Dr. A would have a difficult time providing those details in what would be several years after treatment by the time the case would come to trial. The expert provided various opinions to the attorney regarding the care of G by Dr. A, citing a number of departures from the standard of care: failing to obtain adequate informed consent, performing the extraction immediately rather than prescribing antibiotics beforehand so as to allow the area to calm down, failing to prescribe antibiotics following the completion of the procedure, and allowing the receptionist to extend medical advice to G without any input from Dr. A. All of these departures, according to the expert, were substantial factors in causing G’s damages – hospitalization, I&D, lost opportunity for an implant, lost time from work, and scarring with its after-effects.

After being served with papers, Dr. A advised her malpractice insurance carrier, which assigned counsel to defend the case. As depositions and other discovery proceeded, Dr. A and her defense counsel discussed options for resolution of the case. Dr. A believed that she had acted appropriately at every step, but she saw how the patient’s expert could paint a very critical picture to a jury, especially with the lack of detail in her chart entry. Her counsel suggested that all parties go in front of a mediator, to hear how a disinterested third-party might see things. Dr. A agreed. At mediation, the mediator, after hearing all positions and seeing the relevant documents, spoke with Dr. A and her counsel alone. The mediator expressed to Dr. A a big concern about how tenuous a court and jury could see detailed testimony about events years prior, based solely upon such a scant procedure note. The mediator was also taken aback that medical advice – which turned out to be harmful – was transmitted to a patient by Dr. A’s professionally unqualified agent without Dr. A’s input. The defense attorney argued to G’s attorney that most of G’s potential trial positions could be countered by the defense’s planned expert, who was highly credentialed. With the mediator’s assistance, the carrier’s authority, and Dr. A’s consent, the case was settled that day for an amount substantially below that which the patient’s attorney had previously said was “rock bottom.”

Takeaways

Oral surgeons must always walk a fine line as to the detail they enter into their charts. While, on one hand, it is nearly impossible and often impractical to detail every single step of every single procedure performed and conversation had, it is also inadequate to sum up G’s treatment visit with Dr. A by recording only “Ext #30 with local.” That entry failed to include Dr. A’s radiographic and clinical findings, the informed consent process, the method by which local anesthesia was obtained and the agent(s) used, the techniques employed, and Dr. A’s diagnostic approaches and reasoning for steps both taken and not taken, just to name a few deficiencies. To walk that fine line, a reasonable rule of thumb is to include in a chart entry enough information so that another oral surgeon would be able to understand exactly what took place, simply by reading the note, without any discussion with the practitioner or patient. A judge once said to a jury and to this author as trial attorney, mid-trial, “ladies and gentlemen of the jury, if it wasn’t written, it didn’t really happen.” Some tough words!

This case incorporates a litigation step which has not often been discussed in this series, that of mediation. While some jurisdictions require it, many others do not; in those that do not, mediation usually comes about only by an agreement between the parties to so engage. But the value of having an experienced intermediary – often a retired judge or attorney – to hear and see what a jury would eventually hear and see and offer insights in an informal environment, cannot be overstated. It is far from uncommon that parties emerge from mediation with a wholly different understanding of the positives and negatives of each party’s positions. This is not to say that all mediations result in settlements, or that all lead to changes in litigation strategy, but these sessions frequently offer perspectives – often more to the litigants than to their attorneys – not considered prior.

Oral surgeons spend their work days treating patients, not answering telephones. The latter is usually left in the hands of office staff. While office staff provide critical and invaluable roles in office public relations, billing, scheduling, and general management, they are not trained as healthcare professionals, and they are not the people appropriately qualified to offer advice about medical or dental conditions. That task is within the sole purview of oral surgeons and other healthcare providers. Here, the receptionist’s advice led to a delay and likely worsening of G’s infection. The problem with that from a legal standpoint is that most jurisdictions will view the actions of an employee as though they came directly from the employer; the concept is known as vicarious liability, making the oral surgeon liable for any improper advice from the receptionist.

We conclude with a brief discussion about antibiotics. It lies within the oral surgeon’s clinical judgment as to whether and when to prescribe antibiotics. Also noteworthy is a fairly recent and growing push by dental groups, authors, and academics, clearly recognizing what some might view as a past tendency for dentists to incorporate antibiotic use in their treatment approaches too frequently, that antibiotics should be prescribed in a more judicious way. But in the end, the treating oral surgeon has the best seat in the house to be able to make that determination. That does not mean, however, that experts in litigation settings will not freely criticize defendant oral surgeons, both for prescribing antibiotics when the expert believes they should not have been given and for not prescribing them when the expert sees a need for having done so. Such is the world of litigation. Here, the expert was critical of Dr. A’s failure to prescribe, so that would have been an issue for a trial jury to resolve, but the lack of information which led to her decision was missing from her chart entry, creating a likely uphill battle for herself.

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 case study, oral and maxillofacial surgeons (OMS) will examine how a documentation error and failure to clinically verify a biopsy site led to wrong site oncologic surgery and malpractice claims. The case highlights the importance of obtaining clinical clarity before procedures.

Key Concepts

Preventing wrong-site surgery through pre-procedure precautions
Vicarious liability for documentation errors
Pure consent to settle clauses in malpractice policies

Background Facts

T, a 71-year-old man, was a retired carpenter, with a history of well-controlled hypertension and chronic, episodic sinusitis, and having smoked at various times in his life, as much as a pack of cigarettes a day. He visited his dentist, Dr. D, at irregular intervals and never wanted to establish a big-picture treatment plan. At his most recent visit, Dr. D noted a course, irregular white area at the buccal mucogingival junction around teeth #29-31. Not feeling comfortable making a provisional diagnosis, Dr. D referred T to a periodontist, Dr. O, to evaluate the area and treat as needed. Dr. O performed an incisional biopsy of the area and sent it to an oral pathologist, Dr. H, for histopathological assessment. The lesion was read out provisionally as atypical epithelial proliferation, but Dr. H asked for a larger sample to be able to make a more definitive diagnosis.

Dr. O took a second specimen from an immediately adjacent site. Due to a clerical error, Dr. O entered into the chart that this specimen had been taken from the "lower left buccal gingiva," with her dental assistant repeating that error on the pathology request form that was forwarded to Dr. H with the tissue. After microscopically examining the specimen, Dr. H diagnosed it definitively. The report from Dr. H to Dr. O read "squamous cell carcinoma, moderately-to-well differentiated, lower left buccal gingiva," the latter aspect having been copied by Dr. H, exactly from the requisition provided by Dr. O's office with the most recent submission.

Upon seeing the words "squamous cell carcinoma," Dr. O immediately referred T to a double-degree oral and maxillofacial surgeon, Dr. M, who had head-and-neck surgery fellowship training, for evaluation and treatment, giving T a copy of the biopsy report to take with him. Dr. M reviewed Dr. H's report, examined T, noting a small lesion on the buccal aspect of teeth #30-31, and explained to T that he would need a PET scan to determine whether there had been any spread. Presuming no such spread, Dr. M advised T that the lesion could be successfully treated by surgery alone, specifically a marginal mandibulectomy and a limited neck dissection. The lesion had not spread, per the PET scan and other modalities, so the stated plan would go forward. T agreed and surgery was scheduled at a regional medical center.

On the day of surgery, T waited in a pre-surgery room, where his medical history was reviewed and identification was checked. A consent form stating the procedure to be "removal of portion of lower jaw, and neck dissection" was signed by T and witnessed by a nurse. Dr. M said a brief "hello" to T before changing into scrubs and entering the operating room, where T was already on the table. Dr. M asked the anesthesiologist to proceed.

Dr. M had taped Dr. H's biopsy report to the OR wall, read it again, and prepared to make an extraoral left submandibular incision, through which he would both remove a mandibular segment and perform the limited neck dissection. Technically, the procedure went forward uneventfully, with T then transferred to the post-anesthesia care unit. T's wife was brought in to see her husband while Dr. M was still there, dictating his operative note. She was aghast to see that surgery had been performed on T's left side, when she knew that the cancer was on the right. When she confronted Dr. M on the spot, he said, "here's the biopsy report, read it for yourself."

Shortly after T's initial surgical recovery, another surgeon treated T, this time correctly operating on the right side of T's face and neck. T suffered emotionally, to the extent that he sought and obtained psychological counseling, but he was never able to comfortably eat or drink, or otherwise normally function orally again. He required and received reconstruction bilaterally, but he always found it to be very compromised and esthetically unacceptable.

Legal Action

T retained a seasoned attorney, who collected all records and obtained opinions from a general dentist (like Dr. D), a periodontist (like Dr. O), an oral pathologist (like Dr. H), and an OMS (like Dr. M). The general dentist saw no liability on Dr. D's part, as he had immediately made an appropriate referral. The oral pathologist similarly found no liability as to Dr. H, reasoning that oral pathologists in biopsy situations do not assess the patient clinically. They simply diagnose what they see microscopically, which he did accurately, and report the findings regarding the site that was conveyed on the requisition it had come from.

The conclusions as to Drs. O and M were quite the different. The expert periodontist stated his view of Dr. O's negligence succinctly: Dr. O's recording error which incorrectly stated the location of the lesion to be examined was inexcusable, and it served to set the entire cascade of events into action, resulting in wrong-side surgery having been done. The oral surgery expert was deeply critical of Dr. M, claiming that he failed to clinically correlate the location findings on a biopsy report with the patient's actual condition, and then compounded the situation by being unwilling to address his error, thereby violating his duties, both surgically and ethically. In short, said this expert, Dr. M failed to do the most basic tasks, namely double checking the intended surgical site before performing irreversible, life-altering treatments.

Substantial settlement amounts were paid to T on behalf of both Dr. O and Dr. M. Additionally, Dr. M was sanctioned by his State Board.

Takeaways

Wrong-site treatment, including surgery – whether, as here, relating to the side of the mandible to be removed, or extracting a first bicuspid instead of an orthodontically planned-for second bicuspid, or endodontically treating a healthy lower molar instead of the diseased tooth next to it – has permanent effects, which are virtually always preventable. Pre-procedure techniques can be, and routinely are, employed that will stop this type of error from ever taking place, such as taking a time out for confirmation, marking the side/site of surgery, having two people independently confirm what is to be done, clinically correlating a result document (such as a biopsy report) with an actual finding, and having an open, no-consequences policy that encourages office staff to voice any concerns before a potential untoward event begins. The old "a stitch in time" adage is never more applicable than in pre-procedure risk protection.

One of the most frequent case types now seen in malpractice claims is a practitioner performing treatment where it was not intended to be, and the trend appears to be growing. While the reasons for that are simply theories, a common-sense approach is that such events might well be driven by a focus on the number of patients seen and procedures performed. In reality, the amount of time needed before a procedure to assure correct patient, correct site, correct procedure is nominal in comparison to the amount of time that most procedures take. But even if a practitioner or an office is measurably slowed down to achieve those assurances, obligations to patient safety warrant those delays.

This case highlights the consideration of responding to patients and their family members when results are not as planned or expected, when complications come to pass, or, as here, when errors are immediately obvious. It would not likely have changed the ultimate course of legal events had Dr. M responded to T's wife differently, because the negligence was so clear and significant, but it might have reduced the likelihood of a Board complaint being levied against him. Evidence to support that theory lies with the fact that no Board complaint was filed against Dr. O.

The pathology request form sent to Dr. H with the second specimen taken by Dr. O was completed by Dr. O's dental assistant, who wrote the requisition form. By way of a concept known as vicarious liability, what the dental assistant wrote is the functional equivalent of Dr. O having written it herself. The assistant's error, whether copied from Dr. O's own transcription error or not, becomes Dr. O's error as well. All that is delegated comes back to the delegator, so double-checking of even such a seemingly unimportant task is critical for liability protection and for patient protection.

As a background fact, both Dr. O and Dr. M had professional liability ("dental malpractice") policies with "pure consent-to-settle" provisions, meaning that no settlement could have been reached without their agreement to do so. Such a provision means that a practitioner can demand that a lawsuit brought against them be tried in court before a jury, regardless of how strong the evidence of wrongdoing might be. For every case, practitioners are counseled by their attorneys regarding the pros and cons of settlement versus trial, with the potential implications of both fully set out on the table.

Finally, we note that, simply for purposes of brevity, some details, which were not relevant to the risk management issues discussed, were omitted. This is particularly the case regarding the pre-surgical work-up phase of care, secondary criticisms addressed by the experts, and the documentary and testimonial evidence before the State Board. Their absence should not be construed as necessary but missing pieces.

Summary of Takeaways

Wrong site surgery remains a leading and largely preventable source of malpractice claims.
OMS are accountable for errors made by delegated staff, even when those errors were unintentional.
Simple confirmation practices before irreversible procedures can prevent patient harm and legal consequences.

This real life case study reveals how limited 2D imaging can lead to missed anatomic details and patient complications. See how incorporating 3D imaging may help strengthen diagnostic accuracy and reduce malpractice risk in your oral and maxillofacial surgery practice.

Key Concepts

How imaging choices influence malpractice risk
Why expert opinions on imaging often differ
Key differences between 2D and 3D imaging

Background facts

Dr. P practiced restorative dentistry in a suburban community since her completion of dental school and a general practice residency. During her formal training and after, she engaged in didactic and clinical coursework involving implant placement and restoration, and regularly recommended and employed dental implants in her treatment plans. That was the case when a new area resident, O, a healthy man in his 40s, presented for general care and consideration for replacing missing tooth #30, which was extracted years ago following a trauma-induced fracture.

O's mouth was in generally good repair, as he practiced good home hygiene and had been a regular dental patient for his entire adult life. Dr. P discussed the replacement options of a 3-unit fixed bridge and an endosseous implant, upon which a single crown would be placed. After taking and viewing a panoramic radiograph, Dr. P advised O that he had "plenty of bone" to support an implant, and she suggested that approach. The costs were similar, so O opted for the implant plan. Dr. P advised O of the usual risks of implant surgery, including a nerve injury which could even be permanent in "rare" situations. O agreed to go forward and set up an appointment within the next few weeks.

At the surgical visit, a chairside assistant presented O with a document entitled Implant Consent Form, telling O that this was exactly what Dr. P had discussed with him. O quickly perused the form and signed it. Based upon measurements she made on the panoramic film, Dr. P determined there to be 14.5 mm of mandibular bone superior to the inferior alveolar canal (IAC), so she planned for and placed a 13 mm fixture. Upon elevating a gingival flap, Dr. P noticed that the lingual height of bone was "a good deal" higher than on the buccal aspect. Other than O briefly wincing toward the end of the preparation phase, all went smoothly, with the implant covered with soft tissue and sutured. A post-placement periapical radiograph showed the implant in very close approximation to the IAC, but Dr. P saw "daylight," so she was not concerned.

One week later, at the suture removal visit, O complained of "pins and needles" and "numbness" on the right side of his lower lip and chin; Dr. P stated that she remained "unconcerned", explaining that this is common and all should be back to normal over the next weeks or months. O returned for crown placement 5 months after implant surgery, still with the same "annoying sensations". Dr. P was surprised that the situation had not normalized, but she continued to reassure O of a return to normal. That never came.

Legal action

O always found the tingling and numbness to be uncomfortable, but he never thought to do anything about it until he met up with a college classmate of his, now an attorney, at an alumni event. The classmate did not practice law where O now lived, but suggested that he consult with an attorney he knew who did "a lot of malpractice work". O met with that lawyer, who gathered all of Dr. P's records and sent O to a local neurologist to assess the extent of the injury: the neurologist confirmed that O's mandibular nerve was, in fact, injured and did not conceive of any improvement, now nearly two years after the surgical event.

O's attorney contacted an experienced dentist whom he knew, who had testified in dental malpractice cases in the past, and who, like Dr. P, regularly placed and restored implants, seeking to retain that dentist as an expert on behalf of O. Following a review of the records, the expert reported back to the attorney that, in his opinion, Dr. P had deviated from the standard of care, which in the expert's view required the use of CBCT radiography in order to accurately determine available bone for implant placement. The expert cited specifically to Dr. P's intraoperative finding of a sloped mandibular crest, which could not have been determined on the 2-D panoramic but would have been seen on a 3-D CBCT, had one been taken. The expert added to that opinion the concept that, once Dr. P noted that lingual-to-buccal slope, she should have immediately stepped back and reconsidered whether the planned-for 13 mm implant was appropriate, which it ended up not being, as the measurement was based upon the highest point of the crest, rather than lower points on that slope, which were closer to the IAC.

The attorney quickly filed suit against Dr. P, as the statute of limitations was approaching. Dr. P contacted her professional liability carrier, which assigned defense counsel to Dr. P. O's attorney voluntarily shared his expert's report with defense counsel, hoping to demonstrate a strong basis for an early settlement. But, defense counsel retained its own expert, who opined that the standard of care allowed for 2-D panoramic films for the purpose of implant planning, although acknowledging a deep split within the dental profession, with some dentists and organized dental groups asserting that (exactly because of anatomic situations as Dr. P found) 3-D studies were required prior to posterior mandibular implant placement, with other dentists and dental groups agreeing with this defense expert's stance. In part, the latter view is supported by the statistical fact that, according to recent assessments, only 29% of U.S. general/restorative dentists have on-site CBCT availability, with less than 2/3 of dental specialists having such access.

Defense counsel recognized that a motion for summary judgment – one seeking dismissal of the case without trial – would not be fruitful because such a motion can only be successful when, among other things, there is no legitimate difference between opposing expert opinions. Therefore, defense counsel thoroughly presented Dr. P with her options: go to trial and ask a jury to determine whether she had run afoul of the standard of care, allowing them to award money to compensate O for his injuries if they determined that she did not meet the standard of care, and if that was causative of his injuries; or trying to reach a pre-trial settlement, presuming that the carrier agreed with that prospect, which it did.

Dr. P frankly said to her attorney that, in multiple continuing education classes she had taken, the need for pre-implant CBCT studies was discussed, for the very reasons highlighted in O's treatment; she further acknowledged that she would have to testify to that experience if asked at trial. Dr. P was concerned, so she authorized attempts to resolve the case. Because O's injuries were viewed, even by his own lawyer, as not severe, evidenced in part by O having never sought subsequent evaluations or care other than at the direction of his attorney, a modest settlement was reached.

Takeaways

It is the rule, and not the exception, that experts for plaintiffs and defendants will disagree, and that is also the case for dentists as a whole, outside of the litigation realm. Those disagreements take center stage during dental malpractice trials, with jurors left to determine which of the opposing positions they accept. As Dr. P reasoned here, it is rarely, if ever, simply a coin flip, because a host of factors play into jury determinations, so the pre-trial "prediction calculus" takes into account a common-sense approach as to how lay people will most likely come to their conclusions on matters of science and professional expertise. Sometimes demeanors of the parties and/or experts carry the day; sometimes the bases of expert opinions are determinative; and sometimes, as might play here, particular professional experiences in the dentist's past are of significance. While legitimate (not fabricated) differences of expert conclusions generally preclude dismissal before trial by way of motions, those differences will need to be resolved by a trial jury. There is no getting around that.

This case study briefly touches on the concept of statute of limitations (SOL), so a short description is in order. The SOL is the time following a claimed negligent event (or sometimes the subsequent discovery of that event) within which a plaintiff must file suit, or be forever time-barred. Of course, as with so many issues in the law, there are nuances and issues that can serve to lengthen the allowable timeframe, but they are exceptions, with the statutory SOL generally being the bedrock. The concept of SOL is perhaps the most variable legal issue as between the States – or at least close to the top of the list – but it is a consideration for attorneys (or self-represented plaintiffs) to grapple with, and not something with which dentists need to familiarize themselves.

As the body of this case study references, divergent views exist within dentistry as to what radiographic techniques are "best" for various planned procedures or diagnostic approaches, which in the litigation arena often translates to opinions as to the standard of care. Articles in respected journals present competing ideas. Some take the approach that dentists are in the most ideal position to make patient-based, procedure-based, and circumstance-based decisions as to which radiographic techniques – whether CBCT, panoramic, periapical, etc. – are most appropriate clinically; others are more rigid, asserting, for example, that nearly all invasive dental/oral surgical procedures require CBCT studies in advance. While we do not advocate here in either direction, dentists and oral surgeons ought to be aware of these opposing schools of thought and consider them in decision-making, realizing that jurors might get the final say.

We end on a note about the decision faced by Dr. P. Given that she had a "consent-to-settle" policy, it was her right to refuse any type of settlement, regardless of the input or advice of her counsel or insurer. Had she not had such a policy, that decision would not have been hers to make. This is yet another issue for dentists to consider when choosing a malpractice carrier and policy.

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In this real-life case study, oral and maxillofacial surgeons will see how a missed biopsy report led to a devastating outcome and costly litigation. The article explores the clinical and administrative failures that allowed a cancer diagnosis to go unnoticed and offers practical risk management strategies to prevent similar tragedies.

Key Concepts

Patient communication in OMS offices
Ensuring timely review of lab reports
How proactive follow-up prevents patient harm

Underlying facts

B, a 54-year-old longtime smoker, had many teeth removed in her adult life due to inadequate oral hygiene. Whenever she went to the dental office (T), it was almost always because of acute symptoms, so she generally ended up in the hands of the oral surgeon currently working at this large group practice in her town. Dr. I was fairly new to oral surgery practice, so he came to the dental office (T) about once every second or third week, as T's needs dictated, while building his own practice in the neighboring county.

When B presented to T, after having not seen any dentist for some 18 months, she complained to the front desk staff of a persistent "sore" in the floor of the mouth, adjacent to where the second and third molars would have been. B was immediately assigned to see Dr. I, who was there that day. Upon examination, Dr. I noted a 1-1.5 cm centrally eroded area of erythroplakia, which bled on light touching. Dr. I told B that he wanted to take a tissue sample to be biopsied, but, not wanting to make her unnecessarily anxious, he said that this was simply a precautionary measure, albeit not overly concerning, despite his own concerns. With local anesthesia, Dr. I removed a small section of the lesion (which did not require any suturing) and sent it to a local lab for pathologic evaluation.

Before leaving the office, B said to Dr. I, "I assume that you'll call me if it's anything bad," to which Dr. I responded, "Of course." Eight days later, a mailed biopsy report was opened at T's front desk by the staff person who regularly handled mail. That staff member placed the report in the physical paper file for B, without reading it or showing it to any dentist, so the diagnosis of "consistent with squamous cell carcinoma" became known to nobody in the office. Not hearing any news, B presumed that all was fine. By the time Dr. I next worked at T, nearly 3 weeks after his prior visit, he had forgotten about the procedure he had performed on B, and nobody knew to alert him to the contents of the report.

Almost a year after seeing Dr. I, B had a hysterectomy. During her pre-operative evaluation, the anesthesiologist noticed a large sublingual lesion while assessing intubation and airway considerations. The anesthesiologist then started the post-surgical process of having B evaluated by the hospital's otolaryngology department, which led to a complete work-up that revealed that the oral squamous cell carcinoma had metastasized broadly. Despite a hemi-mandibulectomy, neck dissection, and a course of chemotherapy, B passed away approximately 2 years after her visit with Dr. I. She left behind an 18-year-old daughter, E.

Legal action

Distraught over the loss of her mother and in dire financial straits, she contacted an attorney to look into her options. E advised the attorney that her mother was complaining about a sore in her mouth for years, and had it checked out by an oral surgeon, "but it was nothing." The attorney made an application to the court to have E appointed as the representative of B's estate, which was granted, after which the records from T and the pathology lab, among others, were requested and received. E's lawyer immediately saw the biopsy report that had been sent to Dr. I at the office of T but found no evidence of any follow-up. E confirmed that she believed that nobody from the dental office ever told her mother about the biopsy findings.

The attorney enlisted the services of an oral and maxillofacial surgeon, a pathologist, and an oncologist to review the records and offer their opinions about potential liability and causation. The oral surgeon determined that Dr. I acted appropriately in immediately taking a specimen of the lesion and sending it for histologic evaluation, but that he failed to follow up on it, thereby leading to the failure of notifying B so that she could timely receive care and treatment; the office, T, was also criticized for not having a system in place whereby every medical and dental document that came in the mail must be reviewed by a dentist. The pathologist was minimally critical of the treating pathologist for not making a phone call to Dr. I or to T upon his abnormal finding, but in the end, the pathologist was of the view that the standard of care required communication to the treating oral surgeon of an abnormal finding, but that standard did not require any specific method of communication. Finally, the reviewing oncologist concluded that, had B been timely sent on a path for a thorough work-up and treatment following the initial biopsy, she would have been able to be treated by less invasive means and would quite likely have survived.

The attorney filed suit against Dr. I and T, asserting claims of B's wrongful death and of pain and suffering for needing the aggressive treatment she had and for going through a slow, painful course toward her death. Dr. I and T alerted their respective malpractice carriers upon being served with the lawsuit papers, and they were assigned different defense counsel. Discovery went forward, with depositions of E, Dr. I, and T's mail clerk taking place, as well as the exchange of relevant documents and statements of expert opinions.

Those expert opinions on behalf of both defendants, Dr. I and T, were not at all supportive, essentially echoing the opinions of the experts retained by the plaintiff's counsel. Realizing early on in the litigation that a defense would be quite challenging, if even realistically possible, the defendants and their malpractice carriers agreed to work toward settling the case with E, through her attorney, which was accomplished by means of a substantial payment, the majority of which was on behalf of Dr. I, the oral and maxillofacial surgeon.

Takeaways

Starting with something of a procedural point, we note that Dr. I and T were represented by different defense counsel. While here, there were different malpractice carriers for both defendants, so the assignment of different counsel seems logical, intuitive, and expected; that is not necessarily always the case. Even if the defendants were insured by the same company, they might also have been assigned different defense attorneys. In some circumstances, different defendants are represented by the same attorney, whether insured by the same or different carriers. The decision is often based upon the important consideration as to whether the various defendants appear to have all of their defense interests aligned, so that they can present a united defense front; otherwise, a potential conflict might well exist between the parties and their attorneys. However, there are times when multiple defendants begin a case with the same attorneys, but that needs to be separated out later in the litigation, if facts or circumstances arise that would lead to a likely conflicting approach to all defenses.

Moving to the clinical issues as they relate to Dr. I, particularly in situations of an itinerant oral surgeon who spends time working in the offices of others, where practice protocols might not be as patient-protective as would be best desired, or as they would be in their own practices. Regardless of the setting in which, as here, a biopsy is performed to assess a concerning situation, the burden of following up on results lies squarely with the surgeon who performed the procedure. Absent that, the patient can easily be inappropriately led into a state of blissful ignorance, as B was in this case study, presuming that nothing was amiss because she did not hear from the office or Dr. I; as a direct result, B carried on as though her health was good, until the ever-growing lesion was serendipitously discovered, by which time cure prospects were no longer viable. Yes, defense counsel could have argued that the time delay until discovery and treatment did not make a difference in the ultimate outcome, of course, based upon an oncology opinion saying so, but such approaches are traditionally difficult to maintain before a jury, whose members might well see it as "making excuses" and "blaming the victim."

The procedures of office T, which directly had a negative impact upon Dr. I as an itinerant, and upon B, allowed non-professional staff to bypass the professionals regarding a document as important as a biopsy report. It is the choice of every office and every practitioner to determine for themselves what are the most efficient and safe ways to ensure that the provision of critical information is not left to processes such as "don't worry if you don't hear from us,” or "call us if you don't feel better." Risk management principles are best carried out by professionals who affirmatively initiate follow-up in all clinical circumstances where awareness of continued symptoms, of worsening symptoms, or of static conditions is critical to the patient's well-being: biopsies, infections, and pain. While office staff can appropriately have a hand in setting up administrative systems that make certain that proper follow-up care takes place, the responsibility for its being carried out rests with the professional.

There is no doubt that practicing as an itinerant, particularly while new surgeons' own practices are growing, has a host of benefits. But what comes with that is at least a modicum of loss of administrative control, which can easily flow into loss of clinical control. The burden of liability does not change, regardless of setting or business ownership.

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Key Concepts

Preventing wrong-site surgery through pre-procedure precautions
Vicarious liability for documentation errors
Pure consent to settle clauses in malpractice policies

Background Facts

Legal Action

Substantial settlement amounts were paid to T on behalf of both Dr. O and Dr. M. Additionally, Dr. M was sanctioned by his State Board.

Takeaways

Summary of Takeaways

Wrong site surgery remains a leading and largely preventable source of malpractice claims.
OMS are accountable for errors made by delegated staff, even when those errors were unintentional.
Simple confirmation practices before irreversible procedures can prevent patient harm and legal consequences.

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Failure to Verify Leads to Irreversible Surgical Error

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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.