Oral Surgeon’s Unnecessary Antibiotic Prescription Leads to Lawsuit

Case Study

Marc Leffler, DDS, Esq.
June 27, 2023

Reading time: 7 minutes

Background Facts

On referral from her general dentist, J presented to an oral and maxillofacial surgeon, Dr. Y, for extraction of a non-vital lower left premolar, tooth # 20.  J’s general dentist advised her that it should be a straightforward procedure that he had done many times in the past, but he simply did not perform any extractions in his practice anymore.  Tooth #20 had been episodically symptomatic over several months but it had now become painful with even the slightest bit of biting pressure. The dentist offered J the option of root canal therapy, but she refused, having had “several” done in the past which failed, and ended up being extracted anyway.

Dr. Y’s office staff asked J to complete a health history form, which she did.  She reported no medical problems, a surgical history of tonsillectomy only, seasonal environmental and various food allergies, and she took no medications on a regular basis.  Dr. Y conducted the traditional radiographic and clinical assessments, concluding that tooth #20 was, in fact, in need of either endodontic treatment or extraction; J reiterated her preference for extraction.  No periapical pathology was radiographically noted.  Dr. Y explained that he would be performing the extraction, and had her sign a “consent form” following a thorough discussion about benefits, alternatives, and risks (most notably paresthesia, infection, damage to adjacent teeth, pain and swelling).  J agreed to go ahead that day and signed the form.

The extraction procedure went forward in what Dr. Y would later say was “routine” fashion.  Upon its completion, Dr. Y gave his patient post-treatment instructions, including a suggestion to take an over-the-counter NSAID for pain, as needed.  J wanted to be given a prescription for antibiotics, as she had been following prior extractions performed years before by other dentists; she expressed that she was very fearful of developing an infection.  Dr. Y explained that he did not know the clinical circumstances surrounding the previous prescribing of antibiotics, but he saw no reason for antibiotics here and was firmly opposed to prescribing antibiotics unless there was a clear need.

J repeatedly insisted, very strongly, and specifically asked for Clindamycin, which she said had worked well following the earlier procedures, with no side effects.  Against his better judgment, Dr. Y wrote J a prescription for Clindamycin, warning her about the concerns about antibiotics generally, and Clindamycin specifically; the chart entry accurately reflected this back-and-forth, and also noted his findings.

By the fourth day post-treatment, J developed watery diarrhea which was red-streaked.  Not associating the issue with the dental treatment, she did not contact Dr. Y, but she did see her primary care physician, who immediately viewed the condition as likely Clindamycin-related, and referred her for in-patient hospital care.  J spent 5 days in the hospital, cared for by specialists in infectious diseases and gastroenterology.  Laboratory studies confirmed the presence of Clostridium difficile in her stool, leading to a diagnosis of antibiotic-induced pseudomembraneous colitis.  No surgical intervention was required, but she personally incurred significant hospital and medical bills, owing to a high-deductible insurance policy, and lost 3 weeks of work for which she received no compensation.  She lost nearly 20 pounds off of her already thin body, which she claimed made her feel weak and overly tired for a few months.        

Legal Action

J called Dr. Y some 2 months after her hospital discharge, asking that he pay for her expenses and lost salary.  Stating that he believed he had acted properly in all respects, and reiterating that it was she who had demanded antibiotics for a condition that did not warrant them, which he gave to her despite his seeing no need to do so, he refused to pay her anything.  Unbeknownst to Dr. Y, J recorded this phone conversation.

One of J’s relatives, who was an attorney, agreed to file a malpractice action against Dr. Y, believing that there would be a swift resolution to the case, given what the attorney characterized as condemning evidence against Dr. Y in the phone call.  He would be proven correct.

When Dr. Y was served with the legal papers, he contacted his malpractice insurance carrier, which immediately retained an attorney to represent him.  That attorney met with Dr. Y and gathered copies of all of his records.  When a notice of legal counsel was sent to J’s attorney, both lawyers spoke to discuss the issues.  Dr. Y’s attorney quickly learned about the call between J and Dr. Y, and a typed transcript of it was provided.

Upon reading the transcript, Dr. Y’s attorney saw some significant problems for his client.  But before rushing to judgment, he involved a board-certified oral surgeon as an expert to review the records and the call transcript.  The expert was of the view that there was absolute justification for the performance of the extraction (especially considering the patient’s refusal for endodontics), and that the extraction was done well; however, the recorded call would be devastating to the defense: Dr. Y had admitted to prescribing an antibiotic with well-known serious side effects without any need to do so, other than to go along with the patient’s unfounded desires.  The expert would be unable to defend those actions.

Dr. Y’s attorney told his client about the recorded conversation, showed him the transcript, and explained the stance of the retained expert.  It became clear to Dr. Y that his having acceded to the inappropriate demands of the patient was going to result in his being liable for J’s injuries.  He authorized his attorney to try to resolve the matter, which was accomplished by the insurance carrier making a payment for J’s out-of-pocket expenses, a portion of her lost earnings, and a small amount for her “pain and suffering”.


While it might be distasteful to reconcile the fact that the patient, J, was the one who made a demand for the antibiotics which directly caused her intestinal condition, with her being compensated for those very injuries, it is by no means an unexpected result.  Dr. Y knew that there was no clinical need for antibiotics, and especially one with such serious potential side effects, yet he allowed the patient to function as the doctor.  A risk management concept to employ is that patients have every right to refuse treatment, and that must be respected, but they cannot be allowed to dictate what a doctor must do in any regard.  When doctors permit themselves to be drawn into a patient controlling what the doctor – and not the patient – is trained to do, poor results are likely to follow.  This is not to say that patients may not or should not decide between various acceptable means of treatment, but that choice is appropriate only when it is a viable and suitable one.

It is worthwhile here to comment upon the issue of the recorded conversation.  Different states have different laws as to whether such a situation is lawful or not, and it would be unrealistic to expect that any dentist  or dental specialist would engage in the legal research necessary to figure out the conditions under which such activities are legally permissible.  The more reasonable, albeit distrustful, approach to take is to simply assume that all conversations with patients or their representatives, whether in person or by telephone, are being recorded, so a certain level of wariness should accompany the discussion.  A similar line should be taken when communicating with patients or their representatives by texting, emailing or interacting over social media: while always abiding by HIPAA constraints, say only what you would feel comfortable having a trial jury hear, because that could actually be the case.

Finally, we briefly and more specifically address antibiotic use.  It is not our role to advise whether antibiotics should or should not be used in particular patient situations.  But it is entirely expected that more and more practitioners are adopting the position initially stated here by Dr. Y, that antibiotics ought not to be given unless there is an absolute need, as determined by the treating dentist.  And even the published regimens of national medical and dental associations with regard to antibiotic prophylaxis have greatly reduced the types of circumstances under which such prescribing is considered appropriate and within presumptive standards of care.  As with virtually all aspects of patient care, it is of great importance to be fully informed about the often-changing landscape of practice, and to make judgments and determinations in the best interests of patients.

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.

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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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