Practice More Safely // Risk Tips // Patient Must Cancel Joint Surgery Due to New Dental Guidelines

Patient Must Cancel Joint Surgery Due to New Dental Guidelines

Marc Leffler, DDS, Esq.
November 26, 2025

Reading time: 7 minutes

Considering recent guidelines regarding joint replacement surgeries, it’s more crucial than ever that oral surgeons coordinate their care with other medical professionals. In this case study, an oral surgeon performs multiple tooth extractions, unaware of the new guidelines surrounding the timing of dental procedures in relation to total joint arthroplasty (TJA). To reduce the risk of joint infection, the orthopedic surgeon reschedules the patient’s knee surgery for several months later. The patient expresses frustration at the inconvenience and the oral surgeon’s lack of awareness regarding these guidelines. However, no legal action is ultimately taken.

Key Concepts

Staying informed on evolving dental guidelines
Separating guidelines from standards of care
Understanding protocols for patients with joint replacements
Documenting communication between healthcare providers

Background Facts

P knew, from years of being told by various dental professionals, that he needed a number of teeth extracted due to gross decay. He admittedly did not have regular and adequate home oral hygiene habits, often leaving him with plaque build-up throughout his mouth and several areas of calculus, particularly on his lower anterior teeth. With an elective knee replacement surgery coming up in 2 weeks, he thought that this would be a good time to have those teeth extracted, in large part because he had read some online information about knee surgery and the potential for mouth bacteria to spread to that surgical site and lead to knee prosthesis loss.

When Dr. N examined P, clinically and radiographically, she noted 8 teeth in need of extraction, in addition to a long-overdue prophylaxis. P made Dr. N aware of the upcoming knee surgery. She arranged for P to have a cleaning that same day, with the extractions to be completed in 3 days.

The extractions went forward uneventfully, leaving a week-and-a-half before the scheduled orthopedic surgery. P saw Dr. N post-operatively to check the extraction sites, 5 days before the knee was to be treated, and all appeared to be healing within normal limits, although a lone bone spicule was easily removed.

P met with his orthopedic surgeon, Dr. C, in the hospital’s pre-surgical waiting area, where P casually mentioned that he had multiple dental extractions about 10 days prior, and the removal of a “small sliver of bone 5 days ago.” Dr. C immediately canceled the knee replacement surgery and told P to contact his office to reschedule once there would be no further dental intervention in those sites. At P’s request to understand more, Dr. C explained that current guidelines, which had “just taken effect,” included that there be a waiting period between oral surgery procedures and certain elective joint surgeries. Frustrated at the situation – because he had taken time off from work, asked family members to rearrange their own schedules to assist him upon his return home, would now need to redo his pre-operative lab testing, and would have to again go through the stress in anticipation of surgery. P contacted Dr. N’s office, asking to come in immediately.

Dr. N was surprised to see P, expecting that he would have been hospitalized and under his orthopedic surgeon’s care. P angrily explained what had happened, with Dr. N listening intently. Dr. N said that she had been unaware of any protocols in place that would have led Dr. C to cancel surgery for a dental-based reason. Nevertheless, she apologized profusely, but P never returned to see her. P located another dental practitioner, who determined the extraction sites to be completely healed, roughly a month or so later. P underwent successful knee replacement surgery, albeit several months after initially planned, with no complications.

Legal Action

Still upset over the entire episode, P spoke with a cousin who is an attorney, as well as a local medical malpractice lawyer. Both gave him the same advice, namely that, although he had suffered from significant inconvenience due to Dr. N’s lack of knowledge, he had no damages which would reasonably be compensable. The second attorney also pointed out that, even if Dr. N had been aware of the new protocol, the teeth were quite likely in need of extraction before the joint surgery anyway, so the orthopedist would have postponed the procedure in any event. All of P’s frustrations would have, therefore, been essentially the same.

Understanding that suing Dr. N would only be able to happen if he represented himself, P sent her a letter requesting copies of his entire chart, and asking her to report the incident to her malpractice carrier, which she did. No further action was ever taken by P.

Takeaways

The “current guidelines” referenced by Dr. C came into effect in late 2024, by way of protocols jointly developed by the American Academy of Orthopedic Surgeons (AAOS), the American Dental Association, and several other organizations. By way of history, the use of antibiotics in association with dental procedures for patients with joint replacements was recommended until as recently as approximately 2012, when the guidance changed to consider discontinuing that practice. The current approach regarding the relationship between dentistry and joint replacements takes antibiotics out of the picture, and instead speaks to the timing of certain dental procedures, both before elective total joint arthroplasty (TJA) and after any TJA. The organizations involved carefully referred to them as guidelines, as compared with standards of care (SOC). But in a litigation setting, it is far from unforeseeable that an expert for a plaintiff might well incorporate the guidelines into their testified-to SOC, if the guidelines were not followed and a negative event ensued.

The new guidelines, briefly stated, are: (1) noninvasive and minimally invasive dental procedures can be performed until the day before elective TJA; (2) dental extractions and other oral surgery procedures should be completed at least 3 weeks before elective TJA (because they can be expected to take up to 3 weeks to heal); and (3) most dental procedures should be delayed – if possible – for 3 months after TJA. The goal, according to the co-chair of the guideline group, is to prevent infections that might emanate from dental procedures, due to bacterial entrance into the bloodstream, which can then attach to the new joint prosthesis, thereby infecting it.

Even though litigation never took place in this case study, it would not be unexpected to imagine that litigation might well have gone forward if the result to P were different. For example, if P had the TJA and then presented to Dr. N 1-2 months later, and if Dr. N had performed the extractions at that time (with both P and Dr. N unaware of the new guidelines), and if the joint prosthesis were then lost to infection due to bacteria commonly found in the mouth, an expert for P, as plaintiff, would be able to make a colorable argument that P suffered as a result of Dr. N not following a published guideline, namely the waiting for 3 months after the TJA to extract the teeth.

A fair reading of the guidelines leaves some room for interpretation, such as what constitutes “noninvasive and minimally invasive dental procedures,” and what dentistry fits under the umbrella of “most dental procedures.” If unclear, a risk-protective approach is to directly involve the orthopedic surgeon, explaining what dentistry is planned, so that the surgeon replacing the joint can have input into the plan of action. In such situations, documentation of those communications is critical, in the event that a lawsuit or Board action were to later arise. A written plan – a letter, email, or text message – from the orthopedist is ideal, but absent that, a detailed, contemporaneous entry by the dentist/oral surgeon into the patient’s chart will serve as a solid, if not perfect, memorialization.

With dentistry and medicine fronts expanding at a fast pace, and with technology fueling that expansion, sometimes seemingly overnight, the burdens upon dental professionals to stay up to date about all aspects of patient care can be daunting. But that is exactly what is required to practice within the standard of care. The fact that a dentist might not be aware of very recent, yet relevant, changes that directly affect their practice will not serve to excuse any lapses that occur as a result. An approach looked at today as up-to-date might be viewed as old-fashioned and outdated tomorrow. Here, although Dr. N was made aware of P’s upcoming knee replacement surgery, she was not aware of the potential impact of her planned dental treatment upon that surgery. That directly and negatively affected P, but fortunately, in not very significant ways.

A question to consider is whether the patient, P, bears any responsibility for the events in this case, particularly by allowing his teeth to fall into such disrepair, all at his own hand, and for waiting until the virtual eve of knee surgery before seeking to address his dental problems. States vary in their handling of this type of issue during the course of litigation. But even when a particular jurisdiction allows for claims by the defendant against the plaintiff that might greatly reduce or completely eliminate monetary compensation, it becomes a strategic question for defense counsel (and the dentist’s malpractice carrier) as to whether there is value in going down that road, with the specter of the potential for a jury to be angered by the attempt to “blame the victim.” Litigation is a process that includes facts, law, strategy, ethics, and assessments of human nature, complex and intellectually stimulating.

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.

This real-life OMS case study illustrates how patient anatomy, clinical judgment, and external pressures can turn a complex treatment plan into a malpractice claim. Learn why it’s critical to trust your professional judgment, recommend only viable treatment options, and prioritize patient safety when weighing surgical risks and alternatives.

Key concepts

All-on-4 procedure leads to serious complication
Trusting your clinical judgment
Risk management lessons for implant dentistry

Background facts

R was a 61-year-old generally healthy man who had worn maxillary full dentures for years, but was becoming increasingly dissatisfied with them, both functionally and esthetically. His lower arch posed no problems for him: other than a 3-unit fixed bridge on the right and a 4-unit bridge on the left, he had natural teeth in place. In the past, he was a nearly pack-a-day smoker, but he had since overcome that habit. He presented to a multispecialty dental office he had seen advertised locally, seeking to improve the condition of his maxilla.

He initially saw a prosthodontist, who evaluated the mouth and concluded that an implant-supported prosthesis would work well for R. Per office policy, the on-site oral surgeon would handle the implant aspect of treatment, with the patient then returning to the prosthodontist for the restoration. That same day, the OMS, Dr. G, met with R, ordered a CBCT study, reviewed it, and discussed the available options. Because of the paucity of maxillary bone — especially posteriorly — and "low-lying" maxillary sinus cavities, a traditional implant arrangement would not be possible. So, 2 options were available: (1) perform bilateral sinus lifts with bone grafting, allow for an adequate healing period, place 3 implants (potentially) on each side, and then restore the maxilla prosthetically after osseointegration; or (2) do an all-on-4 procedure using the pterygoid bones bilaterally for both posterior implants, place a provisional prosthetic appliance that same day, and later convert to a permanent prosthesis after integration.

The office management encouraged the most time-efficient case completions possible. With that in mind, Dr. G and the prosthodontist discussed the available options, with Dr. G expressing some concern about the radiographically appearing rather thin pterygoids, particularly on the right side. However, the prosthodontist did not want to wait for the entire sinus lift process to play out, and encouraged the OMS to do the all-on-4 approach, despite her stated concerns. Dr. G (reluctantly) agreed, and so did R, after they had a full discussion about the most common risks, benefits, and options, with R signing a consent form.

On the day of treatment, R took the oral sedative prescribed for him by Dr. G, just before leaving home. Dr. G injected local anesthetic solution buccally and palatally across the entire upper jaw. Because she is left-handed, Dr. G began with her preferred side, the left, because access was easier. Referring to the CBCT images, she uneventfully placed 2 implants on the left side, 1 at the approximate site where tooth #11 had been, and 1 angled into the pterygoid: both were clinically stable. She then turned to the right side to place 2 implants before the prosthodontist placed the ready provisional. The implant near the prior site of the upper right canine was smoothly placed. In performing the right pterygoid osteotomy, Dr. G's concern came to fruition, as the bur, which had initially been met with typical bony resistance, suddenly fell into a void, which she presumed to be the pterygopalatine fossa. When she backed out the handpiece, bright red, pulsating blood heavily flowed into the mouth, clouding the entire field.

Her initial approach was to pack the site with gauze strips, which did slow the flow, but the gauze quickly filled with blood and continued to do so despite repeated packing. Dr. G believed that she had pierced into (a branch of) the right maxillary artery. With her being unable to gain hemostatic control, and being in an outpatient setting with an awake patient, she attempted to gain access to the source of the bleed by entering the maxillary sinus through a Caldwell-Luc approach, and then cutting a window through the posterior sinus wall to enter the fossa. But doing so only provided a second outlet of significant bleeding, leading her to conclude that ligating the artery required in-hospital care by a head and neck surgeon. R was transported by ambulance to a nearby medical center, with Dr. G accompanying him to try to maintain site pressure as they travelled. R was emergently taken to the OR, where he was induced and intubated, and where an ENT surgeon unsuccessfully attempted access to the torn vessel endoscopically, ultimately ligating the vessel some 2 hours later by way of a preauricular approach infratemporally. R remained in hospital for a week, and missed work for more than a month, left with a scar and always feeling limitations to his usual exercise routine.

Legal action

R's newly retained attorney obtained all of the relevant dental and medical records, and sent them on to an academic-based OMS for review. That expert passed on his conclusions to the attorney who hired him: that Dr. G succumbed to external pressures and performed a procedure that she knew was concerning and risky, given the specific anatomy presented, and that the preferred set of procedures for this patient would have begun with the sinus lift and graft approach. The attorney also contacted the treating ENT, who was willing to provide his opinion that the bleed and the resultant surgery and after-effects were due to an ill-conceived surgical treatment plan by Dr. G.

Dr. G contacted her malpractice carrier when she provided records to R's attorney, and again when she was served with papers that initiated the lawsuit against her. She had personally been deeply upset by the events, now some months ago, and she told her assigned attorney that she was eager to put this behind her, partly for the personal impact but also because she realized that she had not exercised her best judgment.

Settlement moves began quickly, with an agreement reached before discovery even started. In addition to money, which covered medical costs, physical and emotional distress, and lost income, R made a somewhat unusual request: that Dr. G write an apology and explanation to him, which he felt that he needed to close the chapter. Despite her attorney advising Dr. G against doing so, explaining the potential impacts upon a Board complaint (which never happened) or hospital credentialing, she did as R had asked, because she, too, needed the closure.

Takeaways

Pressures are placed upon oral surgeons, and in fact many other types of practitioners as well, rather frequently, and they come from sources as diverse as patients, dental or medical colleagues, and practice supervisors and owners. The reasons for the responses to those pressures are equally diverse, from the need to maintain employment, to conflict aversion, to ego. In the end, though, all that really matters on the legal side of practice are adherence to standards of care and principles of ethics. Perhaps, a safe approach for practitioners to take is that if something simply does not feel right, stay away from it. While that might not always be practical, it can at least be an internal starting point, if not ultimately the end point.

It is the general rule, rather than the exception, that there are most often multiple options/alternatives to overcome dental and surgical problems. Principles of informed consent dictate the requirement to advise patients of, among other things, available alternatives. But that does not mean every alternative, only the viable ones. And if an alternative is not viable for any reason, whether because of patient anatomy, underlying patient medical conditions and social habits, or provider limitations (based upon ability or experience), that alternative falls out of the realm of informed consent. Here, the anatomy of R's right pterygoid and, perhaps (reading between the lines) her own limitations, Dr. G seemingly knew that an all-on-4 plan was not viable for R. Fighting her better judgment was a clear factor in the events and injuries.

All procedures carry risk. It is part and parcel of healthcare delivery, particularly when surgery is involved. Practitioners appropriately take specific risks into account when weighing the potential coming to fruition of those risks against the benefits of doing the procedure. There is no one-size-fits-all formula to use to come to a decision, but instead a subjective process that is individual to every surgeon, considering a host of factors. Many risks come to pass (in the form of injury) in the absence of any negligence, with that concept being a foundation for much of malpractice defense, but when injuries occur because of negligence, that often becomes the very basis for plaintiffs' cases against doctors.

Decisions about settlement versus trial are extremely case-specific, with the insurer, counsel, and all litigants playing significant roles. Practitioners who have "pure consent" policies are permitted, per policy language, to withhold consent to a settlement, in favor of going to trial. But in cases where practitioners do provide their consent to settle, that does not mean that the malpractice carrier must then settle the case, but simply that it may agree to a settlement. Think of it as a permission slip, but not a requirement slip.

Summary of takeaways

External pressures should never outweigh clinical judgment when determining the most appropriate treatment plan.
Not every treatment option is suitable for every patient — anatomy, provider experience, and overall risk must be carefully evaluated before proceeding.
When complications occur, treatment decisions that fall outside the standard of care can increase liability exposure and lead to malpractice claims.

In this real-life case study, dentists will see how a billing dispute and incomplete informed consent process escalated into a malpractice lawsuit. Learn why clear communication about treatment risks, accurate coding practices, and thoughtful handling of patient concerns are essential to reducing liability and protecting patient trust.

Key concepts

Dentist sued after a billing dispute and nerve injury
How informed consent gaps can increase malpractice risk
Why accurate coding and patient communication matter

Background facts

For Dr. A, extracting teeth was an everyday part of practice, as was virtually the entire scope of dentistry. In addition to postdoctoral training, she had been performing these procedures for years in a region of the state with no oral surgeons within a 2–3-hour drive. She was a participating provider in several dental insurance plans that were popular among her patients.

One such patient, P, was an 18-year-old high school senior who presented for an annual recall visit, with a new complaint of periodic pain associated with the lower right third molar. Despite P being of majority, his mother accompanied him into the treatment room to see Dr. A. Following a clinical examination, a panoramic film was taken and viewed by Dr. A. Tooth #32 was erupted, had incomplete apex formation, but was still in close radiographic proximity to the inferior alveolar canal. Dr. A assessed the pain to be a function of difficulty in cleansing the area, with inflamed gingivae as a result. She suggested, while pointing to the panoramic, extraction, which she said, "shouldn't be too hard,” although it carried a "slight risk of a nerve injury which could leave P's lower lip and chin numb, and rarely be permanent." This conversation was documented with specificity in the chart. P had heard about impacted wisdom teeth from a few friends, so he asked whether his tooth was impacted. Dr. A replied, "No, it is not.” P wanted to think about it, so he left the office with a sample of an oral rinse and instructions as to how to improve his oral hygiene. A month later, the symptoms persisted, so P's mother called the office to schedule an extraction appointment.

Before having local anesthetic injected, P was handed a paper entitled "consent form,” which he and his mother "briefly read.” The document contained a list of potential risks, including a general statement about possible "loss of sensation.” P signed the document prior to the extraction going forward. Dr. A worked on the tooth for well over an hour, much longer than she had anticipated, cutting out pieces of tooth and trimming away bone using round and fissure burs. P could taste blood, particularly at one point, which caused Dr. A to pack gauze in his mouth. The following day, P awoke to find the right half of his lower lip and chin numb, which he did not find surprising, given the warning beforehand, but so was the right half of his tongue, which was a surprise. At post-op visits, Dr. A assured and re-assured P and his mother that feeling would return to normal — it never did.

Separately, P received a bill for Dr. A's services from her billing office, seeking a co-pay for "#32 7240.” The amount was significant, despite Dr. A's advertised plan participation, so P's mother questioned the office manager as to what all of this meant. The response was that, according to the insurance plan's rules, Dr. A was permitted to charge that amount for fully impacted wisdom teeth, as this was. P's mother replied that Dr. A had specifically advised her and her son that the tooth was not impacted, no less fully so. The office manager spoke with Dr. A, but the answer came back that, because Dr. A had to work so long to remove the tooth, she was not willing to make any adjustments.

P's mother contacted the insurance carrier to explain the situation. The carrier requested a pre-treatment radiograph from Dr. A, based upon which the in-house reviewers concluded that the tooth was not appropriately coded as 7240, but rather should have been 7210 (surgical extraction of erupted tooth). Under the plan provisions, Dr. A was therefore not permitted to charge any co-pay but instead accept the plan payment in full. When the insurer notified Dr. A of that, with a copy sent to P's mother (whose employer provided the coverage), Dr. A was steadfast that she was entitled to the amount billed and would send P to collection if she was not paid. P's mother did pay the claimed balance, but the carrier dropped Dr. A from the panel due to what it referenced as "upcoding resulting in excessive billing.”

Legal action

P had slowly been adapting to the lip, chin, and tongue numbness, but his mother remained upset about the principle of billing her son and threatening a collection action, so she contacted an attorney. The attorney was not very familiar with dentistry in any legal regard, so he reached out to his own dentist, with a copy of Dr. A's records that he had been provided, to help him interpret what was going on. The dentist agreed with the insurance company's position that the extraction had been inappropriately upcoded, but perhaps more importantly that it was clear from the records that, while P had been warned of the possibility of an inferior alveolar nerve injury and its effects, he had not been told anything about tongue numbness, which came from an injury to an entirely different nerve branch and which should have been avoided if proper technique had been employed.

The attorney initiated a lawsuit against Dr. A, asserting lack of informed consent relating to the lingual nerve injury, dental malpractice regarding the causing of the lingual nerve injury, and breach of contract leading to the improperly billed (and collected) co-pay amount. The defense attorneys assigned to Dr. A by her malpractice carrier reviewed the case with their client and advised her that they would seek expert opinion as to the substance of the informed consent and malpractice claims, but that she would not be covered for the breach of contract claim, per a clearly stated policy exclusion.

The expert retained by Dr. A's counsel was provisionally willing to present a defense as to the malpractice claim regarding her having negligently caused the tongue numbness, but that position would need to be re-evaluated following her deposition testimony. However, there was no evidence in the record to demonstrate that she had provided any warning of a potential lingual nerve injury and its impacts. The defense expert did not see a pathway to successfully defend the claim of lack of informed consent. A second expert reviewer reached the same conclusion.

Dr. A's attorneys had a candid discussion with her. Even if the malpractice claim could likely be effectively defended, the lack of informed consent claim could not. So, P would be entitled to a monetary award regardless of which, or both, of the claims went P's way in the eyes of a jury. Dr. A agreed to have her attorneys seek to settle the claim, to be paid by the malpractice carrier, which they did. As part of the settlement agreement, Dr. A would personally return to P the amount his mother paid her for the co-pay.

Takeaways

While it is impossible to know whether P would have sought an attorney at some point to file an action on his behalf based upon the substantive dental issues, it is quite clear that the issue which drove the initial attorney involvement was the billed, and eventually paid, co-pay amount. There is then perhaps a bit of irony that the money that Dr. A was unwilling to waive directly led to a settled malpractice claim, but that insisted-upon co-pay not only started the legal action steps but was also ultimately paid by Dr. A out-of-pocket. Dr. A made the decision to demand a disputed amount of money, and that decision likely cost her far more — particularly with her being dropped from a panel — than had she acquiesced in the first place. It is not our role here to advise dentists as to whether they should fervently go after unpaid, disputed fees. Instead, we demonstrate a situation where doing so ended up causing more harm than benefit. Food for thought.

Experience teaches that lay jurors might not always understand scientific, dental facts, sometimes making their determinations counter to what experts and attorneys anticipate. On the other hand, issues relating to overbilling or upcoding are relatively straightforward for plaintiffs' attorneys to explain to jurors, and simple for them to understand. At times, jurors might put all else aside and render a verdict for a plaintiff if they do not see the defendant-dentist as having been honest. Such is a version of jury nullification, with the jury members substituting what they deem critical in place of what the law says is critical. Taking subjectivity of that type out of the hands of juries increases a defendant's chances for success.

This case study exemplifies how the trigger for a patient seeking legal counsel might have nothing at all to do with the quality of dentistry. Yes, dentistry is complex, and there is an ever-present unpredictability factor, so ideal results do not happen with every procedure, with every patient. What need not be complex are matters over which dentists and their staff members have full control — such matters can virtually always be taken out of the equation as to what starts the legal ball rolling.

Finally, we briefly address the coding of procedures for billing purposes. The ADA and perhaps other associations provide numerical codes for dental procedures, which state the procedure performed and which often serve as the basis for which payment is sought and made. With few exceptions — such as 7241 for full impactions with unusual surgical complications, or time under sedation/general anesthesia, as examples — procedure codes do not take into account the length of time required to complete or the difficulty in doing so. To upcode to a procedure not actually performed, for a higher fee, is to invite a host of problems, including the initiation of a malpractice lawsuit or Dental Board complaint.

Summary of takeaways

A signed consent form alone is not enough — patients should be informed of all risks associated with a procedure, and those discussions should be thoroughly documented.
Billing disputes and inaccurate procedure coding can damage patient trust and may become the catalyst for malpractice claims.
Upcoding procedures can result in payer disputes, loss of network participation, regulatory concerns, and increased legal exposure.

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In this real-life case study, oral and maxillofacial surgeons will learn how coding decisions and informed consent gaps can create significant liability risks. Discover why accurate billing, clear patient communication, and thorough consent discussions are essential risk management tools.

Key concepts

OMS sued following an upcoding dispute and nerve injury
How billing and coding decisions affect malpractice risk
The importance of documenting consent discussions beyond a signed form

Background facts

For Dr. C, an oral and maxillofacial surgeon, extracting teeth was an everyday part of practice. As the only oral surgeon within a 2–3-hour drive, she was a participating provider in a number of dental insurance programs which were more popular within her patient and referral bases.

One such patient, T, was an 18-year-old high school senior who self-presented based upon a network list, with a new complaint of periodic pain associated with the lower right third molar. Despite T being of majority, his mother accompanied him into the treatment room to see Dr. C. Following a clinical examination, a panoramic film was taken and viewed by Dr. C. Tooth #32 was erupted, had incomplete apex formation, but was still in close radiographic proximity to the inferior alveolar canal. Dr. C assessed the pain to be a function of difficulty in cleansing the area, with inflamed gingivae as a result. She suggested, while pointing to the panoramic, extraction, which she said, "shouldn't be too hard,” although it carried a "slight risk of a nerve injury which could leave T's lower lip and chin numb, and rarely be permanent." This conversation was documented with specificity in the chart. T had heard about impacted wisdom teeth from a few friends, so he asked whether his tooth was impacted. Dr. C replied, "No, it is not.” T wanted to think about it, so he left the office with a sample of an oral rinse and instructions as to how to improve his oral hygiene, particularly in that area of the mouth. A month later, the symptoms persisted, so T's mother called the office to schedule an extraction appointment.

Before having local anesthetic injected, T was handed a paper entitled "consent form,” which he and his mother "briefly read.” The document contained a list of potential risks, including a general statement about possible "loss of sensation.” T signed the document prior to the extraction going forward. Dr. C worked on the tooth for nearly an hour, much longer than she had anticipated, cutting out pieces of tooth and trimming away bone using round and fissure burs. T could taste blood, particularly at one point which caused Dr. C to pack gauze in his mouth. The following day, T awoke to find the right half of his lower lip and chin numb, which he did not find surprising, given the warning beforehand, but so was the right half of his tongue, which was a surprise. At post-op visits, Dr. C assured and re-assured T and his mother that feeling would return to normal — it never did.

Separately, T received a bill for Dr. C's services from her billing office, seeking a co-pay for "#32 7240.” The amount was significant, despite Dr. C's advertised plan participation, so T's mother questioned the office manager as to what all of this meant. The response was that, according to the insurance plan's rules, Dr. C was permitted to charge that amount for fully impacted wisdom teeth, as this was. T's mother replied that Dr. C had specifically advised her and her son that the tooth was not impacted, no less fully so. The office manager spoke with Dr. C, but the answer came back that, because Dr. C had to work so long to remove the tooth, she was not willing to make any adjustments.

T's mother contacted the insurance carrier to explain the situation. The carrier requested a pre-treatment radiograph from Dr. C, based upon which the in-house reviewers concluded that the tooth was not appropriately coded as 7240, but rather should have been 7210 (surgical extraction of erupted tooth). Under the plan provisions, Dr. C was therefore not permitted to charge any co-pay but instead accept the plan payment in full. When the insurer notified Dr. C of that, with a copy sent to T's mother (whose employer provided the coverage), Dr. C was steadfast that she was entitled to the amount billed and would send T to collection if she was not paid. T's mother did pay the claimed balance, but the carrier dropped Dr. C from the panel due to what it referenced as "upcoding resulting in excessive billing.”

Legal action

T had slowly been adapting to the lip, chin and tongue numbness, but his mother remained upset about the principle of billing her son and threatening a collection action, so she contacted an attorney. The attorney was not very familiar with oral surgery in any legal regard, so he reached out to his own dentist, with a copy of Dr. C's records that he had been provided, to help him interpret what was going on. This state did not require specialty-specific experts. The dentist agreed with the insurance company's position that the extraction had been inappropriately upcoded, but perhaps more importantly that it was clear from the records that, while T had been warned of the possibility of an inferior alveolar nerve injury and its effects, he had not been told anything about tongue numbness, which came from an injury to an entirely different nerve branch and which should have been avoided if proper technique had been employed. (As a side note, the general phrase in the consent form, "loss of sensation,” did not provide any expert reviewer with the specificity that is helpful in a defense.)

The attorney initiated a lawsuit against Dr. C, asserting lack of informed consent relating to the lingual nerve injury, dental malpractice regarding the causing of the lingual nerve injury, and breach of contract leading to the improperly billed (and collected) co-pay amount. The defense attorneys assigned to Dr. C by her malpractice carrier reviewed the case with their client and advised her that they would seek expert opinion as to the substance of the informed consent and malpractice claims, but that she would not be covered for the breach of contract claim, per a clearly stated policy exclusion.

The expert retained by Dr. C's counsel was provisionally willing to present a defense as to the malpractice claim regarding her having negligently caused the tongue numbness — but that position would need to be re-evaluated following her deposition testimony. However, there was no evidence in the record to demonstrate that she had provided any warning of a potential lingual nerve injury and its impacts. The defense expert did not see a pathway to successfully defend the claim of lack of informed consent. A second expert reviewer reached the same conclusion.

Dr. C's attorneys had a candid discussion with her. Even if the malpractice claim could likely be effectively defended, the lack of informed consent claim could not. So, T would be entitled to a monetary award regardless of which, or both, of the claims went T's way in the eyes of a jury. Dr. C agreed to have her attorneys seek to settle the claim, to be paid by the malpractice carrier, which they did. As part of the settlement agreement, Dr. C would personally return to T the amount his mother paid her for the co-pay.

Takeaways

While it is impossible to know whether T would have sought an attorney at some point to file an action on his behalf based upon the substantive oral surgery issues, it is quite clear that the issue which drove the initial attorney involvement was the billed, and eventually paid, co-pay amount. There is then perhaps a bit of irony that the money that Dr. C was unwilling to waive directly led to a settled malpractice claim, but that insisted-upon co-pay not only started the legal action steps but was also ultimately paid by Dr. C out-of-pocket. Dr. C made the decision to demand a disputed amount of money, and that decision likely cost her far more — particularly with her being dropped from a panel - than had she acquiesced in the first place. It is not our role here to advise oral surgeons as to whether they should fervently go after unpaid, disputed fees. Instead, we demonstrate a situation where doing so ended up causing more harm than benefit. Food for thought.

Experience teaches that lay jurors might not always understand scientific, dental/surgical facts, sometimes making their determinations counter to what experts and attorneys anticipate. On the other hand, issues relating to overbilling or upcoding are relatively straightforward for plaintiffs' attorneys to explain to jurors, and simple for them to understand. At times, jurors might put all else aside and render a verdict for a plaintiff if they do not see the defendant-dentist as having been honest. Such is a version of jury nullification, with the jury members substituting what they deem critical, in place of what the law says is critical. Taking subjectivity of that type out of the hands of juries increases a defendant's chances for success.

This case study exemplifies how the trigger for a patient seeking legal counsel might have nothing at all to do with the quality of surgery performed. Yes, oral surgery is complex, and there is an ever-present unpredictability factor, so ideal results do not happen with every procedure, with every patient. What need not be complex are matters over which surgeons and their staff members have full control; such matters can virtually always be taken out of the equation as to what starts the legal ball rolling.

Summary of takeaways

A billing dispute can quickly escalate into legal action, even when the original concern is not directly related to clinical care.
Accurate coding matters because upcoding or disputed fees can damage patient trust and increase liability risk.
Clear, specific informed consent documentation helps support a stronger defense if complications occur.

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Key concepts

All-on-4 procedure leads to serious complication
Trusting your clinical judgment
Risk management lessons for implant dentistry

Background facts

Legal action

Takeaways

Summary of takeaways

External pressures should never outweigh clinical judgment when determining the most appropriate treatment plan.
Not every treatment option is suitable for every patient — anatomy, provider experience, and overall risk must be carefully evaluated before proceeding.
When complications occur, treatment decisions that fall outside the standard of care can increase liability exposure and lead to malpractice claims.

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Additional Risk Tips content

All-on-4 Implant Procedure Leads to Malpractice Claim Against OMS

Explore an OMS malpractice case study involving an All-on-4 implant procedure, surgical complications, clinical judgment, informed consent, and risk management lessons for implant dentistry.

Billing Dispute and Consent Issues Lead to Malpractice Lawsuit

See how a billing dispute, upcoding concerns, and informed consent gaps led to a dental malpractice lawsuit and costly legal consequences.

Coding and Consent Issues Result in OMS Malpractice Lawsuit

Learn how upcoding disputes and informed consent gaps can lead to OMS malpractice claims, patient distrust, and legal action.

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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