Office Manager Gives Unsafe Clinical Advice Without Consulting OMS

Background Facts

V is a generally healthy 32-year-old man who presented to his general dentist with a complaint of pain and mild swelling associated with his lower left first molar, which had previously been treated endodontically and restored with a post and crown. The dentist evaluated the area and found tooth #19 to have a likely vertical fracture, such that it required extraction. Given that the general dentist did not regularly perform extractions, V was referred to Dr. P, an oral and maxillofacial surgeon.

When Dr. P examined V clinically and radiographically, she found what appeared to be a periapical radiolucency on that tooth, adjacent to the soft tissue swelling, and found that there was also a likely fracture of the tooth. Extraction was the suggested treatment, with V agreeing to proceed along that path. Dr. P engaged V in a back-and-forth discussion, and obtained his informed consent, which was memorialized on a document – in which all traditional extraction risks, benefits and alternatives were set forth – signed by both Dr. P and V.

In a very straightforward manner, using only local anesthesia, V’s tooth #19 was extracted, with a small mass of granulomatous tissue, which had been attached to the root, removed in the process. No sutures were required. Dr. P prescribed an NSAID analgesic and an antimicrobial mouth rinse. That evening, the office manager called V, as was usual for all patients who had been surgically treated, and was told that he was doing well.

On the third post-operative day, V called the office and spoke with the office manager again. There was some increased swelling “under the jawline” that was concerning to V. The office manager advised V that this was “nothing unusual,” but that V should keep the office posted. V did just that the following day, describing worsening swelling and the beginnings of some swallowing difficulties. The office manager responded by telling V that she had been working for Dr. P for more than ten years, and this kind of thing happens often, so that it was not anything to be worried about. Neither of the conversations was documented or transmitted to Dr. P.

With the swelling continuing to enlarge downward toward the neck, V presented to a local hospital emergency department, where he was seen by the on-call oral surgeon, who wondered, aloud, why Dr. P had not prescribed antibiotics at the time of infection or seen V when he developed problems. In any event, the hospital oral surgeon took V to the operating room for intra- and extra-oral I&Ds under general anesthesia, followed by a 3-day course of IV antibiotics while still in the hospital, and then oral antibiotics upon discharge. V lost nearly 3 weeks from work, had a painful recovery, and continues to have 2 prominent facial scars from the surgery.

Legal Action

A local attorney, well known to handle malpractice cases, was contacted and then retained by V, to look into pursuing a claim of malpractice against Dr. P. It was never learned whether it was the commentary of the hospital oral surgeon that led V to seek an attorney. The attorney gathered the records from Dr. P, the referring general dentist, and the treating hospital, and sent those, along with a descriptive narrative, to an oral and maxillofacial surgeon who regularly advertises his “expert” services.

The prospective expert identified two potential areas of liability, which might be implicated in causing the injuries claimed: (1) Dr. P failed to prescribe antibiotics at the time of extraction, even though an active infection was clearly present, thereby failing to control the infection and stop it from progressing; and (2) Dr. P’s office manager, a non-professional, offered clinical advice to V, twice, which delayed his treatment to the point that hospitalization and invasive care were needed to control the infection, leading directly to the injuries claimed. The expert advised V’s attorney that the informed consent process was appropriate, and also advised that the use of antibiotics at the time of extraction in a situation like this was a matter of judgment on Dr. P’s part. With philosophies against antibiotic use becoming more prevalent, such a claim would be difficult to prove.

However, the expert maintained a strong opinion that the office manager, Dr. P’s employee, had overstepped her bounds by giving V advice, which allowed the infection to worsen, unabated, until the options of care were limited to exactly what eventually took place. The expert attributed the dispensing of advice by a layperson to an inappropriate office policy on the part of Dr. P, which gave the office manager permission – at least tacitly – to advise patients without consulting with Dr. P. 

A lawsuit was filed by V’s attorney, naming both Dr. P and her practice entity as defendants. Once served with the legal papers, she contacted her professional liability carrier, which provided her with defense counsel. After meeting with Dr. P and reviewing all of the relevant records, her counsel enlisted the opinions of another oral and maxillofacial surgery expert, who essentially concurred with the views of V’s expert. Once made aware of her expert’s agreement with V’s expert, Dr. P acknowledged that she had erred in placing no checks on what her office staff was able to transmit to patients. She immediately changed that approach going forward.

Dr. P and her attorney spoke about the possibility of a potential settlement payment to V being made on behalf of the practice entity, which was insured under a separate policy, rather than on her personal behalf. The attorney and insurance carrier staff concluded that this was the type of case that would properly lend itself to such a payment, as Dr. P was not alleged to have performed any negligent actions, with only her lay staff member being so alleged. Under those terms, Dr. P waived her right to withhold consent to settlement, with a settlement agreed to shortly after.

Takeaways

This case study raises a number of issues that are important to an understanding of the malpractice litigation process. The first is that of “judgment calls.” Many states have provisions in their statutes which allow practitioners to exercise their professional judgment, which, if sound, does not subject them to malpractice. Like most aspects of malpractice litigation, the idea of judgment being “sound” is ultimately up to expert interpretation. But in situations like these, where there are legitimate competing views as to proper courses of care, and where the experts on both sides of the issues are fair evaluators, V would have had a very difficult time proving that Dr. P was negligent in her determination that antibiotics were not necessary, despite the fact that V’s infection worsened and required surgical treatment. What matters is the prospective view, and not one with 20/20 hindsight.

Perhaps the most valuable idea to be learned here involves the concept of vicarious liability, meaning that a person/entity (here, Dr. P/her practice) in a “superior legal position” to the actual wrongdoer is responsible for the negligent acts of that wrongdoer. The office manager was an employee who was acting in her capacity as an employee at the time the inappropriate advice was given. And because the office manager’s actual employer in this situation was the practice entity, rather than Dr. P personally, it was the practice entity that was in that “superior legal position,” making it the vicariously liable body. It is for this reason that the settlement was made as against the practice rather than Dr. P. That is an important distinction. In many, if not all, jurisdictions, settlements made on behalf of a doctor must then be reported to certain state and/or national authorities, whereas those made on behalf of practice entities carry no such reporting requirements. Reporting issues aside, it should be clear that MedPro policies will provide coverage in situations like the actions of the office manager here, whether formally an employee of a practice entity or of an individual doctor, and therefore closed out on behalf of either that entity or doctor.

Dr. P’s corrective actions going forward, namely that all clinical advice to patients, or reports of clinical problems by patients, must be transmitted by staff to Dr. P, who will then prescribe the proper action to be taken. Administrative matters, such as billing, insurance filings, and appointments would still be left in the hands of staff members, unless clinical issues crept into those matters. In this office, the change was an involved and sometimes murky set of modifications, but the fruits which emerged improved patient care and decreased the risk of malpractice events and litigation.

Settlement value is often the result of a method that includes both objective and subjective components. In the end, settlement is achieved when there is a meeting of the minds, between the insurance carrier and the patient-plaintiff. It has been said many times by trial lawyers that a good settlement is one in which neither side is too unhappy.

Finally, we address policy coverage for vicarious liability. An oral surgeon should fully evaluate policy provisions for this consideration, to determine whether it exists at all, and if so, whether all employees are covered – including employee oral surgeons, dentists, nurses, etc. – or just those employees who are not professionals. The difference is significant, to say the least, so being fully aware of that aspect of the policy will lead the oral surgeon to a purchase that best fits their needs and best protects them.

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.