Loss of Taste After Procedure Leads to Lawsuit Against OMS

Case Study

Marc Leffler, DDS, Esq.
December 11, 2023

Reading time: 8 minutes

Medical receptionist talking with patient.

Informed consent is one of the most important aspects of practicing oral and maxillofacial surgery. When performing procedures, ensuring through verbal agreement and documentation that a patient understands all possible negative outcomes is the best way to protect yourself against claims of malpractice. In this case study, an OMS’s informed consent documentation becomes key when she is sued over a patient’s loss of taste after a procedure.

Key Concepts

  • Implementing a comprehensive informed consent process
  • How thorough documentation can mitigate malpractice risk
  • Informed consent and preventing claims of negligence

Background Facts

T, a 21-year-old man, came to Dr. H, an oral and maxillofacial surgeon, on referral from his primary dentist, due to episodic discomfort associated with his fully impacted lower left third molar, tooth #17. Dr. H examined her patient clinically and radiographically, determining that T had all of his third molars in place and impacted. She explained the condition and suggested that #17 ought to be removed, as its position and angulation would likely continue to cause pain; she also advised T that the other 3 wisdom teeth, which were in comparable anatomic positions, should be removed, so as to preemptively eliminate similar problems in the future. But T was definitive in his desire to have only the symptomatic tooth removed at that time.

Given that T was willing to undergo the extraction with local anesthesia alone, Dr. H, with agreement from T, planned to go ahead with the procedure that day. Prior to starting, Dr. H personally conducted a thorough informed consent process, which was then memorialized by T signing a “consent form” which set forth the information that Dr. H discussed with T. In pertinent part here, the form contained language that “among the risks associated with the extraction is the alteration or loss of sensation to areas of the mouth, including the lips, chin, teeth, gums, and tongue, which is generally temporary but, in rare cases, can be permanent”. After reading and signing the form, T verbally acknowledged again that he understood the risks, benefits, and alternatives, and wished to proceed. Dr. T charted, through a chart template, “RBA explained and accepted by patient; form signed and witnessed”.

After delivering local anesthesia, Dr. H elevated a full thickness flap and removed alveolar bone from the buccal and distal areas, before vertically sectioning the crown and roots through the furcation, leaving a small shelf of tooth lingually, which split with the application of a small straight elevator into the trough. At that point, Dr. H noted an increased amount of bleeding from the lingual gingiva, which she was able to control with local pressure. She continued the procedure to its completion by elevating the tooth out of its socket, gently removing a few sharp bony projections with a Rongeur, debriding the site, and placing a single silk suture.

At the 1-week suture removal visit, T advised Dr. H that he had a complete loss of feeling on the left side of his tongue, and that he also was unable to taste anything on that side. Dr. H did sensory testing for several sensory modalities, including taste, confirming that T’s complaints were clinically apparent. She reminded T of their discussions before treatment, telling him that this type of thing does happen at times. T agreed that he had been told about loss of feeling, but contended that taste loss was never discussed. Dr. H said that she wanted to continue to follow T to assess his progress for a few months, and if there were no improvement, she would refer him to a colleague for evaluation for possible nerve repair surgery, a conversation she documented. T made it clear that he would return to Dr. H for evaluations, but he was not interested in any nerve surgery.

Over the next 4 ½ months, T made regular visits to Dr. H, making the same complaints and exhibiting the same signs and symptoms. At what would be T’s final visit with Dr. H, she again offered a referral for nerve evaluation, explaining to T that, if there would be any chance for surgical repair of the nerve, it should be done as quickly as possible; absent that, Dr. H told her patient (and documented) that she suspected a reasonable likelihood that the current sensory losses might be permanent. 

Becoming increasingly unhappy over time with his persistent numb tongue and loss of taste, T’s father suggested that he meet with an attorney to see whether any recourse was available. The attorney contacted obtained Dr. H’s records and forwarded them to a “dental expert”. That expert reviewed the records and found 2 issues of concern: (1) he did not view the consent form language, which supposedly mirrored what was verbally discussed, as being adequately descriptive so as to alert T of the potential for permanent taste loss; and (2) the sudden increase in bleeding (as recorded in the chart entry) at the time of sectioning indicated that the oral surgeon had inappropriately ventured into the lingual soft tissue, injuring the lingual nerve.

Litigation was begun on behalf of T, asserting lack of informed consent and negligently performed surgery. At his deposition, T testified that he was never advised, by either spoken or written words, that taste loss was a potential risk, and further stated that he would never have gone forward with the extraction if he knew that. When Dr. H was deposed, she testified that the lingual bleeding represented an increase in the amount of bleeding she had seen in that surgery up to that point, but it was not an amount of bleeding that was excessive by any means, and that at no time did she perform any surgical steps improperly; she further testified that, when she discussed the risks with T prior to the surgery, she most certainly did advise him of the close relationship between the nerve fibers which mediate taste – the chorda tympani – and the lingual nerve, which provides feeling.

Dr. H’s attorney filed a motion to dismiss the case before it reached the trial calendar.  Employing an expert, as well as Dr. H’s deposition testimony, the attorney argued that there was no evidence of any surgical missteps, with any expert suggestion of that being only speculative, and that, despite the factual dispute between T and Dr. H as to what was said in obtaining informed consent, the plain language “alteration or loss of sensation to … [the] tongue” should be taken literally and read liberally to mean alteration or loss of any sensation relating to the areas noted on the form to potentially be affected. T’s expert countered in response that an increase in bleeding mid-surgery had to be a result of an errant cut of the nerve/blood vessel bundle that should not have been breached, and, regarding the issue of informed consent, there is a clear difference between feeling and taste.

The judge granted the motion of Dr. H’s defense counsel, citing to the concept that, without a plaintiff’s expert being able to point to a specific improper action during surgery, as compared with a result, negligence is speculative, and that is not a standard worthy of allowing a case to move forward. As to the feeling/taste issue, the judge reasoned that, as a lay person just like the patient, we all have 5 senses – including feeling and taste – so a risk warning that advised of alteration or loss of sensation should be viewed to include any or all of those senses.  The case was dismissed.

Takeaways

The significance of a claim of lack of informed consent cannot be underestimated in the litigation context. It may be pled as a stand-alone basis for a lawsuit, or, more commonly, as an adjunct to an assertion of negligent care. Either way, it can serve as the basis for the finding of liability, even if the procedure is performed entirely properly. While the various States differ regarding the specifics of informed consent requirements, the basic universal concept is that, prior to the start of a procedure, patients are entitled to be made educated consumers, so that they know the full extent of what they are about to get into. While this “consumer education” is usually referred to as advice regarding risks, benefits, and alternatives (abbreviated RBA), that should not be taken to be so limited; whatever information a reasonable patient would reasonably want to know to inform their decision-making process is information that should be provided. Finally on this issue, while jurisdictions might vary as to whether a written, signed “consent form” is required, there is no question that litigation defense is made far easier when such a form is part of the treatment record.

In examining informed consent processes for many patients and providers, we have found it to be far from a given that taste loss will be listed on a form or made part of a verbal back-and-forth discussion whenever the potential for lingual nerve injury exists as a risk. From an anatomic standpoint, the intimate relationship between the lingual nerve and its accompanying chorda tympani cannot be overlooked. While the judge in this case took a broad approach to interpreting the informed consent process, it should not be taken for granted that every judge will take that same tack; had this judge taken a more narrow view and concluded that there was a question of fact to be left for a jury determination, the case would have been permitted to advance to trial, where the result could have been far different.

It should be noted that Dr. H’s fastidious follow-up, recommendations, and charting served her quite well in the positive final resolution of this matter. Moreover, her timely advice of a potential referral, and repeating that advice despite the patient’s prior refusal, was very protective, while simultaneously serving the patient’s interests. It would not be going too far out on a limb to predict that, had she not offered the nerve repair referral that she did, an additional claim – that of depriving T of the opportunity to obtain a repair – would likely have become another aspect of the plaintiff’s case.

Lastly, the fact that a doctor is sued does not necessarily mean that a trial will ensue, with a jury’s determination of the final resolution. There are a number of events which could intercept the pathway to trial: voluntary discontinuance by the plaintiff, motions of various types by defense counsel which lead to dismissal, or a mutually agreed-upon settlement, to name just a few. Savvy defense counsel are aware of all of these approaches, and are an invaluable resource to doctors involved in litigation.


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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.

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