Oral Surgeon Sued by Elderly Patient’s Healthcare Proxy

Background Facts

S, age 87, presented with her adult daughter, seeking to know whether the placement of implants might make her lower denture more stable in the mouth, perhaps as a snap-on, with the intention of reducing the number of lost dentures at S’s assisted living facility’s dining hall. S would often remove her denture before meals, due to discomfort while she was eating, and forget to replace it, sometimes forgetting where she had placed it. While S was able to function generally well regarding activities of daily living, she was clearly afflicted with many symptoms of dementia, although no formal diagnosis had ever been made.

S’s daughter, B, explained this background to Dr. P while all 3 of them were in the room together. B also explained that she had been designated as her mother’s healthcare proxy, vested with the authority to make healthcare decisions in the event of her mother’s inability to do so for herself. B showed Dr. P a copy of the healthcare proxy document.

Dr. P examined S’s edentulous mandible and the adjacent tissues, both clinically and radiographically. Given the rather atrophic mandible, combined with S’s long-term regimen of taking bisphosphonates, Dr. P explained all of the general risks of implants, but also specifically discussed the potential, albeit small, for medication-related osteonecrosis of the jaw with the possibility of a pathologic fracture. Dr. P was mindful to use explanatory language that lay people would understand, as he always did during informed consent discussions. Throughout the discussion process, Dr. P believed, based upon S’s involvement, that S fully understood what he was explaining.

S said that she did not want to take the explained risks at her age, so she said she would prefer to simply have a new denture made which would hopefully be better retained during eating. B interjected that her mother was failing to take into account the impact of regular calls she received from the assisted living facility about S frequently misplacing or losing her denture, so B insisted that the implant plan go forward, telling Dr. P that her mother does not any longer know what is best for herself. It would be B’s determination that would prevail. B signed a surgical consent form in her capacity as healthcare proxy, despite her mother’s objections.

The following week, S returned to the office, driven there by B, with S repeatedly saying that she did not want any surgery. B said to her mother, in Dr. P’s presence, “you don’t know what’s best for yourself, so just sit there and let the doctor do his job.” The surgery went forward, seemingly uneventfully.

S’s healing was anything but uneventful, with repeated infections developing, requiring multiple debridements. One tissue specimen which was histologically examined was read as osteonecrosis. While the mandible never fractured, all of the implants placed failed, so S was ultimately treated with a new complete denture, but with less bone than she initially had, leading to even worse retention.

Legal Action

Without S’s knowledge, B interviewed several attorneys, with the hope of finding one who would sue Dr. P for malpractice. Once she found a willing attorney, B brought S to the attorney’s office to sign the needed documents to allow that attorney to begin representation. The attorney filed an action, claiming that Dr. P was negligent in his treatment of S, so as to cause osteonecrosis of the mandible, and that Dr. P failed to obtain adequate informed consent from S.

When Dr. P was served with papers advising him of S’s suit, he notified his malpractice carrier, which assigned defense counsel to Dr. P, now the defendant. After the typical exchange of materials in the litigation phase known as discovery, S’s attorney made a motion for summary judgment solely on the issue of the claim for lack of informed consent. (A motion for summary judgment asks the court to decide an ultimate issue prior to a trial, essentially arguing that no legitimate opposition could possibly be raised.) Here, S’s attorney argued that S never consented to the procedures performed by Dr. P, because she had not wanted to have surgery in the first place but that her daughter, purportedly functioning as the healthcare proxy, overrode her wishes, with Dr. P acceding to B’s demands.

After reviewing all of the papers from S’s (plaintiff’s) and Dr. P’s (defendant’s) counsel, the court decided in favor of S, determining that B had overstepped her authority, given that S had never been officially deemed to be incompetent to handle her own health matters, and that Dr. P went along with the wishes of someone other than the patient, whose desires should have carried the day. All of this took place despite Dr. P’s belief that S fully understood the contents of all of their discussions.

The legal impact of a grant of summary judgment in favor of the plaintiff meant that the only open issue was the amount of money that S was entitled to receive. The claim of negligent treatment then became effectively moot, because a plaintiff needs only to prove one of her claims – which the grant of summary judgment legally did – in order to be awarded damages. Dr. P’s counsel advised him that an appeal of the court’s decision was an option, particularly given the scarcity of legal precedent on this very issue, but Dr. P preferred to end the case and his stress. So, he consented to allow his carrier to settle the case, which the carrier did, shortly thereafter.

Takeaways

As ironic as the case facts might be viewed, and putting aside the concerning family dynamics, addressing the issue of obtaining informed consent from patients with dementia, or presumed dementia, is an ever-growing consideration. It is roughly estimated that there is a prevalence rate of dementia of somewhere between 10% and 14% of older population groups (See JAMA Neurology, Estimating the Prevalence of Dementia and Mild Cognitive Impairment in the US, Manly, et al., 2022), so practitioners are wise to be familiar with the implications of this condition regarding how they practice.

There is no reasonable expectation that healthcare practitioners must be fully aware of the effects of all legal issues that might underlie the treatment of their patients. But there is a clear expectation, as the court’s ruling in this case study impliedly suggests, that, absent obvious emergency situations, practitioners should know where their understanding of legal concepts ends, and take a “legal time out,” if you will, to look into whether they might be entering into dangerous territory. Obtaining the help of an attorney who is familiar with a particular issue that might arise is a safe and protective step for a practitioner to take.

Unpacking the events of this case study, members of society often have preconceived notions about the decision-making capabilities of elderly patients, especially when they present as less “sharp” than what might be expected, and even more so when they are accompanied by family members who promote a definitive view, perhaps (cynically) for self-serving purposes. It is for a dental or oral surgery practitioner to step back from a sometimes-inflamed set of circumstances and determine for themselves what makes sense.

It is usually healthcare practitioners who play a major role in these types of determinations, but clearly not all practitioners are equally qualified to perform that very important task. And if disagreement exists between patient and presumptive proxy, again with the exception of true emergencies, enlisting the outside opinion from the patient’s treating physicians, or from a psychiatrist or neurologist, can be helpful toward reaching a fair solution to the problem, so as to do what is best for the patient – including allowing personal agency – and hopefully avoiding the outcome in this case study. Looking at other medical records, to ascertain whether a diagnosis of dementia had previously been made, can be valuable as well.

While state laws vary, and healthcare proxy forms commonly used often contain different words, the general concept described by B is substantially correct, as verified by the words on the document she possessed: that she was permitted to step in and make healthcare decisions for her mother in the event of her mother’s inability to do so for herself. As the court involved here conceptually held, it is not for an adult child or a dentist or oral surgeon to presume that a patient lacks the mental competence to make her own healthcare decisions, but for an officially judged determination to be all that legally matters. So, while it might seem quite intuitive (“you know it when you see it”) to reach conclusions regarding mental capacity, such as for surgical consent, legal constructs can view that far differently, and it is the latter which will dictate what is and what is not mental incapacity.

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.