Patient with Permanent Nerve Injury Sues OMS for Not Using CBCT

Background Facts

Dr. K was a new-to-practice oral and maxillofacial surgeon, in the process of building his own practice in the small town where he and his family chose to live. While that practice slowly grew, he often visited general dentistry offices nearby to treat patients in need of oral surgery. Upon arriving at the general dentistry office of Dr. N, he noted his first scheduled patient to be a healthy woman in her early 30s, T, whose most recent chart entry a week prior stated that she had been having episodic pain and swelling associated with a vertical fully impacted lower left third molar. A periapical film had been taken and was available for Dr. K’s review.

When Dr. K met the new patient, she advised him that the symptoms had subsided since Dr. N provided her with antibiotics, but she wanted the tooth removed due to the fact that episodes were unpredictable and she had a current lull in her usually heavy work travel. Dr. K did not believe that the PA radiograph was adequate for the planned surgery, so in the absence of an available CBCT, he requested that a panoramic film be taken. The roots of tooth #17 appeared radiographically, from a 2-dimensional standpoint, to lie in the general area of the inferior alveolar canal, but he could not be sure whether there was an intimate relationship between the two. Dr. K advised T as to what he saw and that a nerve injury was a possibility, with resulting numbness of a temporary or even permanent nature. T signed a “consent form” which contained this risk, as well as others which were also discussed. The procedure went forward under local anesthesia, without any noted complications.

At her postoperative visit the following week, T reported profound numbness associated with the left side of her lower lip. Because Dr. K was not present in the office that day, Dr. N noted his findings in the chart, re-appointed T to see Dr. K in 3 weeks – the next time he would be there – and advised Dr. K by phone about T’s condition. Dr. K found T’s condition to be exactly the same at that following visit, and at every monthly visit after, until a year post-operatively. Dr. K saw no potential benefit in trying to repair a nerve injury which was encased within bone. T would be permanently numb over the course of her left inferior alveolar nerve.

Legal Action

T tried in earnest to adjust to her loss of feeling, but she found it disruptive to her social life and embarrassing to eat or drink with friends, as she drooled down the left commissure. She retained an attorney who regularly practiced in the medical, if not dental, malpractice world.

Just prior to filing suit against Dr. K on behalf of T, the attorney enlisted the services of an OMS who would provide expert opinions to try to prove that Dr. K had been negligent in his care of T, so as to cause the permanent IAN injury. The thrust of the expert’s approach was that a 2-dimensional diagnostic radiographic study, such as a panoramic, is far less reliable in assessing root-nerve proximity relationships than is a 3-dimensional CBCT, which, in the expert’s opinion, is required pursuant to the standard of care for the extraction of impacted third molars. The expert further argued that, because Dr. K performed the extraction in the office of a general dentist, where there was no CBCT, he should have either refused to perform the extraction or self-referred the patient to his own office, where a CBCT was available.

T’s attorney was seeking a substantial amount of money to resolve the case by way of settlement. Dr. K was fervent in his disagreement with T’s expert, so he exercised his “pure consent” policy provision, thereby eliminating any chance at settlement, leaving a trial jury to determine whether he had committed malpractice and, if so, the monetary value of T’s injury.

At trial, T’s expert testified exactly as expected, and T sympathetically explained the effects of her loss of feeling. However, there are two sides to every story, and this was no exception. Dr. K’s expert, with credentials similar to his counterpart, told the jury that the use of panoramic radiographs for pre-extraction diagnostic purposes was well within the standard of care, with CBCTs also being excellent diagnostic tools, but which were by no means a required component of the standard of care. He then told the jury that he could and would prove that concept. (While expert testimonial references to literature are frequently excluded, particularly on direct examination, the court here allowed such testimony because Dr. K’s expert had personally authored an article on this subject. Thus, he was permitted to speak to his findings as they related to the facts of this case.)

Based upon his own research, the expert testified to the jury that, of all of the general dentistry offices nationwide, only 29% had on-site CBCT availability, and only 65% of dental specialists had CBCTs in their offices. He went on to say that the standard of care is what a reasonably prudent practitioner would or would not do under similar circumstances, going on to argue to the jury, “there is no possible way that the standard of care can require use of CBCT before this type of extraction when nearly ¾ of general dentists do not have them, nor do more than 1/3 of specialists. To conclude otherwise would be to say that the vast majority of general dentists and a substantial portion of dental specialists are not reasonably prudent, which simply is not the case.”

The jury accepted that position and found that Dr. K was not negligent.

Takeaways

There is no getting around the fact that the availability and use of CBCT is steadily and quickly growing. Oral surgeons in particular, and other dentists as well, find it to be an extremely valuable tool in many phases of practice. While the “reasonably prudent” aspect of standard of care considerations is very subjective, once CBCTs become as pervasive as high-speed handpieces did in the mid-20^th century, it will be hard, if not impossible, to argue that CBCTs are not required so as to comport with the standard of care. Practitioners are free to practice using methods they see as most effective, but it is hard to imagine the argument made by Dr. K’s expert being a viable one any longer than a decade or so from now. Standard of care most certainly does change over time.

In the absence of that argument, or had the jury not accepted it, the next question would have been whether the use of CBCT by Dr. K, as compared with a panoramic study, would have given him substantially more, or at least different, information to have been able to prevent the paresthesia that came to pass. That is perhaps a more difficult position for a plaintiff to prove, namely that the lack of the CBCT directly caused the IAN injury. So, because of the multiple prongs of proof required of a plaintiff, the law allows for different approaches and theories to be at play in the same case, demonstrating the absolute value of experienced and skillful defense attorneys who are able to respond to fluid courtroom events.

In every trial, judges are called upon to make decisions about the propriety of objections, the admissibility of evidence, and the boundaries within which witnesses must stay during testimony. Appellate courts are tasked with determining whether such decisions were appropriate when they occurred, and whether any erroneous decision was a “harmful” or “harmless” error, in legal terms. When those appellate courts conclude that a trial judge erred, and that error adversely affected the losing party, they may send the case back for a re-trial or they may even reverse the entire outcome. But none of that can become a factor unless the losing, or otherwise disaffected, party at trial seeks an appeal, rather than simply letting it lie. In this case, experienced legal readers likely thought of the word “appeal” when learning that the court allowed Dr. K’s expert to provide the statistics that he did, and it is far from unusual that a judge calls balls and strikes with less than 100% accuracy at trial, in the eyes of all involved. But even questionable decisions carry the day unless and until a case is appealed and that higher court agrees with the appealing party.

Finally, we address the risk considerations associated with oral surgeons who perform treatment in the offices of others, which might not be equipped or stocked as they would ideally prefer. Although that issue in this case was one subject to legitimate debate, the answer can often be much more definitive, to the surgeon’s detriment, such as when a sedated or generally anesthetized patient loses an airway and neither a crash cart nor trained assistant is present, or when an old amalgam flies posteriorly during the sectioning of a tooth for extraction, with no adequate suction available to save the fragment from aspiration. The risk-reward analysis is ever-present.

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