OMS Extracts the Wrong Tooth and Faces Litigation

Background Facts

T was an 18-year-old male, who recently consulted an orthodontist with esthetic dental concerns, mostly due to an asymmetry of the maxillary teeth that resulted from a congenitally missing upper left bicuspid that skewed the dental midline to his left. The orthodontist concluded that, given the mildly increased overjet as well, T would best be treated with the extraction of the upper right first bicuspid, after which that space would be closed orthodontically with a rightward set of forces that would also set back the upper anterior teeth. 

To carry out the pre-orthodontic treatment, the orthodontist’s receptionist, at the orthodontist’s request, called a local OMS’s “front desk,” and asked that T’s “tooth 5 on the upper right” be extracted. The OMS’s staff member noted the request, exactly as stated, in the schedule for the upcoming appointment. When T presented, the OMS was confused as to whether the orthodontist wanted “tooth #5” or the “upper right 5” to be removed, so she asked her office manager to call the orthodontist’s office to clear that up. In response, the orthodontist’s office manager looked at the chart notes and transmitted back that the OMS should remove “the upper right 5 tooth.” Although still somewhat confused, given dentistry’s multiple systems of numerically identifying teeth, the OMS nevertheless proceeded to obtain informed consent by explaining that “a tooth” would be extracted, and having T sign a “consent form” which listed “tooth extraction” as the procedure, and then uneventfully extracting the upper right second bicuspid (UR5 a/k/a #4). When the patient returned to the orthodontist several weeks later and was examined, the orthodontist called the OMS and said, “I wanted the first bicuspid removed, not the second, and that mistake will make the outcome less desirable in the end.”

MedPro’s Involvement 

Immediately upon learning of the problem from the orthodontist, the OMS (Dr. K), telephone-contacted her malpractice carrier, MedPro, and spoke with the claims intake representative to advise of the situation. Because Dr. K had not, as of that time, been informed by T or a lawyer on his behalf that there was an intention to sue, the situation was noted in Dr. K’s policy file as an incident, with no further steps taken as of that time. 

Less than 3 months later, Dr. K received a letter from T’s attorney, stating an intention to file an action in dental malpractice, unless T was paid a stated sum of money. Dr. K again contacted MedPro and forwarded the attorney’s letter, along with a copy of her records for T. Now, the matter was a claim, and assigned to the claims consultant who manages claims within the state where the events occurred. The claims consultant telephoned Dr. K, and the two had a detailed conversation about the dental events and the potential procedures that might follow. Dr. K made it very clear to the claims consultant that she believed that the communication errors emanated from the orthodontist’s office, and that she was of the opinion that she had “done nothing wrong.” Therefore, she wished to exercise her pure-consent malpractice policy provision and withhold consent to settle “under any circumstances.” The claims consultant explained to Dr. K that, while her right to exercise would be fully respected by MedPro, that meant that, unless a case, if formally started in court, were voluntarily withdrawn by T or dismissed by a court, it would proceed to trial. Dr. K said that she understood and was fervent in her decision.

The claims consultant spoke with T’s lawyer and advised that no settlement offer was forthcoming. Shortly thereafter, a process server appeared at Dr. K’s office and served her with a copy of the initiatory documents, often called a Summons and Complaint, in which T claimed that Dr. K was negligent, thereby causing injury to T, and also asserting a claim of lack of informed consent. Those documents were forwarded to the claims consultant, who discussed with Dr. K that defense counsel would be assigned to represent her as the case moved forward. Dr. K was now the defendant. Upon receiving the case to defend, Dr. K’s new attorney, who was very experienced in defending dental malpractice actions, met with Dr. K to review the entirety of her chart for T, discuss all that took place in terms of the inter-office communications, and explain all that would follow.

After that meeting, the defense lawyer timely served on T’s attorney a document known as an Answer, in which all claims of malpractice/wrongdoing/lack of informed consent were denied. Dr. K’s defense counsel also served a number of information-seeking documents, to begin the litigation phase of Discovery, during which each party would provide documents and other requested information, all overseen by a judge. The Discovery phase provides each party with the opportunity to learn their adversary’s litigation approach, by having them share demanded information for the ultimate purpose of eliminating any “ambush at trial.” Perhaps the most consequential portion of Discovery is the taking of depositions of all parties, and sometimes of experts as well. Depositions are under-oath question-and-answer sessions during which the person being deposed provides spoken responses to relevant questions put to them by opposing counsel, and which are then transcribed by stenographers. Because deposition responses can be read to trial juries with the same force and effect as though they were stated in court, pre-deposition preparation by counsel of all witnesses – including the defendant dentist – is critical.

Completion of discovery is reported to the judge, at which time a trial date is assigned, with some judges bringing counsel (and sometimes the parties too) together to discuss settlement prospects. If expert reports and theories have not yet been exchanged between the parties, this is the time to do so. Motions seeking dismissal, if made, are generally submitted now. This time, known as the pre-trial phase, lends itself to further discussions between the parties and their attorneys, as well as the insurance carrier, to again consider whether a settlement is to be a consideration. Dr. K continues to be able to exercise her pure-consent provision, thereby moving the case to trial. Defendant dentists often make determinations regarding whether to seek a potential settlement based upon such issues as their assessment of treatment events with all positions now in the open, their weighing of the competing expert opinions, and personal concerns (time out of office for trial, reputational worries, stress, etc.), all in conjunction with their attorneys. MedPro tracks all litigation steps along the way, often seeking and considering dental, medical, and legal viewpoints from in-house or other sources. It is important to note that insured dentists with pure-consent policies can properly withhold consent to a settlement, but if they agree to seek a settlement, the ultimate decisions as to whether to settle and for what amount then lie exclusively with MedPro, as the insurer.

Trial starts with the jury selection process – voir dire – and then proceeds into what is traditionally viewed as the trial proper. At times, certain motions to exclude evidence are presented to the presiding judge, to be addressed outside of the jury’s presence, and then decided. First, the plaintiff presents his case – documentary and other tangible evidence, fact witnesses, expert witnesses – with the defense attorney able to cross-examine all witnesses who appear and testify on behalf of the plaintiff. At the conclusion of “plaintiff’s case,” defense attorneys usually seek dismissal of the entire case, claiming that the plaintiff, who has the burden of proof, failed to meet that burden to the satisfaction of the court. If granted, the case ends. But if denied, as it statistically most commonly is, the defendant’s attorneys present the “defense case,” offering their own evidence and witnesses, the most important of which is the defense expert dentist, to counter the claims that the defendant dentist was negligent, thereby causing injury to the plaintiff.

It is then time for the jury to do its job, after lawyers’ summations are heard and its members are instructed by the judge on the law applicable to the case. But even while the jurors deliberate, a settlement agreement between the parties can still be reached, presuming here that this defendant, Dr. K, waives her consent option, up until the time that the jury renders its collective decision as a verdict. A verdict for the plaintiff is almost always accompanied with an amount of money for compensation, but a verdict for the defendant means that the plaintiff has not proven that he has been injured at the negligent hand of the defendant dentist, and therefore gets no money. Post-trial motions are often presented to the judge by the losing side, either orally or in writing, with reversal of the jury’s determinations fairly uncommon. And then, the option for appeal hangs in the balance, asking a higher court to correct the trial judge’s improper trial decisions and/or the jury’s verdict, occasionally but not frequently resulting in a new trial from scratch or an alteration of dollar amount.

Final Points

To reiterate, it is more than possible, and in fact realistic, that the exact steps as discussed here will be at least slightly different in every case. But this general “big picture” is emblematic of how cases progress, from incident to claim to suit to discovery and to trial. MedPro takes the position that sued dentists, who are as knowledgeable as possible about the litigation process they are about to enter, are better advocates for themselves, assist their attorneys more effectively, and endure less stress until they emerge on the other side.

Finally, we conclude with a couple of points, the first of which was alluded to earlier: while dentists and specialists insured by MedPro may choose to withhold their consent to settle such that it is a trial jury who makes the ultimate determinations, waiving that consent does not force MedPro to settle on their behalf, but rather only permits it, should MedPro determine that settlement is the best approach. The entire litigation process – whether it concludes with a dismissal, a settlement, or a jury verdict – is a collaborative one, between the insured dentist, counsel, experts, and MedPro. MedPro handles more dental malpractice claims than any other carrier and closes 80% of those claims without payment. For the claims that do make it to trial, our insureds win 95% of the time.

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.