OMS Patients Are Entitled to Choose Their Treatment … Within Reason

Case Study

Marc Leffler, DDS, Esq.
September 27, 2022

Reading time: 8 minutes

Background Facts

As a young child growing up in the 1950s and 1960s, Mrs. H’s physician often prescribed Tetracycline for her frequent respiratory tract infections, either unaware of or unconcerned about the potential for causing intrinsic dental staining.  She was always upset in the years that followed, that despite her vigilant oral hygiene, and despite having used any number of tooth whitening systems, including one applied by her prior dentist, she could never rid her teeth of the yellowish staining that existed since the teeth erupted.  After having moved across the country when she and her husband retired, she went to a new dentist with the sole complaint of her dissatisfaction with the esthetics of her upper anterior teeth.

Dr. S, a young dentist in the process of trying to build a cosmetic and restorative dentistry practice, clinically and radiographically examined his new patient.  She was periodontally stable and had no apparent decay.  Upon hearing Mrs. H’s complaint and her desire to improve the way she looked when she smiled – which she has always been hesitant to do – he suggested placing veneers on teeth #5-12, explaining that, with little tooth preparation, veneers would provide a great improvement.  The patient rejected that idea because the alignment of those teeth was not the ideal rounded shape that she saw on some of her friends.  As an alternative, Dr. S said that he could “grind away” more of the teeth than is necessary for veneers, and make her crowns, which would correct both the color and alignment.

Mrs. H saw these approaches as just others to add onto her list of failed treatments, so she was opposed to both of them.  Instead, she wanted to learn more about implants that she had heard so much about in the media.  The dentist explained that implants were used to replace missing teeth, so they could not provide a solution for her because she had all of her teeth.  The new patient became insistent that she wanted to have her 8 upper front teeth – which she “hated” – extracted, and replaced by implants and “ideally shaped” crowns on them.  Against his better judgment, but wanting to have a new patient in the community praise the great cosmetic work he did to each person she would meet, he agreed to go forward as she requested, but in a modified manner: he would refer Mrs. H to an oral surgeon, Dr. P, for the extractions and implant placement phases, after which Dr. S would restore those implants.

Upon presentation to Dr. P, the patient reiterated her desires, and although Dr. P thought the approach the patient wanted was “extreme”, he agreed to proceed.  A week or so later, with local anesthesia and nitrous oxide/oxygen delivered through a nasal mask, Dr. P slowly extracted each of the teeth, often surprised by the difficulty in doing so, owing to the fact that, without periodontal disease, the teeth were firmly attached to alveolar bone; when the two lateral incisors were removed, a small amount of buccal bone remained attached to those teeth.  After some modest hard and soft tissue trimming, 6 implants were placed with the aid of a stent, pre-made by Dr. S, for spacing purposes.  The surgery seemed to go uneventfully, save for the buccal bone issue, and a laboratory-fabricated removable denture was inserted, with the patient sent immediately back to Dr. S for adjustments.

By the sixth week post-placement, 2 of the implants, around which the soft tissue had been persistently inflamed, despite antibiotics and oral antimicrobial rinses, were noted to be loose and were removed by Dr. P.  An additional implant failed less than 3 weeks later, and a fourth, as well, as the uncovering phase approached, leaving only 2 integrated fixtures.  Dr. P advised Mrs. H that he would need to allow time for the lost implant sites to heal, and then reinsert new ones, which would then need time to integrate, or else she would have to remain with a removable appliance.  She became incensed, requested and obtained copies of her records and radiographs, and went to another dentist, who openly and severely criticized Dr. P of having committed malpractice and gross misconduct for extracting “perfectly good teeth”.  This subsequent-treating dentist advised Mrs. H that she had very limited options due to the significant bone loss in the entire anterior region, told her that a removable appliance was the best approach, and suggested that she contact a lawyer, which she did.

Legal Status

Mrs. H’s attorney filed suit on her behalf against Dr. P, claiming negligence and reckless behavior on his part for needlessly and inappropriately extracting healthy teeth, rendering her a “dental cripple”.  Additionally, Mrs. H filed a disciplinary complaint with the State’s dental board.  Counsel for Dr. P denied any negligence or recklessness by their client, and worked with Dr. P to respond to the board.

Litigation Events

Addressing the board action first, after several hearings, Dr. P was sanctioned for the very actions complained of.  As a result, his licensed was partially suspended for a period of 2 years, permitting him to practice during this time only if he was under the direct supervision of another dentist/oral surgeon; he was fined; and he was required to take continuing education courses prescribed by the board.  In its written ruling, the board denounced Dr. P for having violated his oath against malfeasance (“above all else, do no harm”), and specifically pointed out that he had been led astray of sound dental and surgical principles by permitting the patient to dictate her care, despite his knowing that it was not in her best interests.  The board did not levy sanctions against Dr. S, even though he had planned the entire course of care, because Dr. P was the practitioner who actually performed the irreversible actions and who had the last chance to back away.

In the State in which these events occurred, board findings against dentists, which involve the same care as is the basis for a malpractice suit, are permitted to be admitted as trial evidence.  On the advice of his counsel, Dr. P agreed to have the malpractice action settled for an amount which, in addition to compensating for pain and suffering, would pay for a treatment plan established by subsequent evaluating dentists, which involved placing additional implants and restoring them.


It is an often-mistaken concept that patients have an absolute right to dictate what care they will receive.  In reality, patients may absolutely determine what treatment they refuse to have, but they do not have the right to dictate to practitioners what care those practitioners must provide.  Dental practitioners are legally and ethically obligated to “do no harm”, so they must not perform any treatment which they know, or which a reasonably prudent dentist or oral surgeon would know, is improper or otherwise not in the patient’s best interests.  This does not mean that patients are not permitted to choose between various alternatives or options, so long as those options are dentally viable; in fact, informed consent laws require that patients be advised of the viable options available to them, in addition to foreseeable risks and the procedure benefits, prior to their agreeing to a specific treatment option.  Once the viable options are presented to patients, the final choice as to which approach to take belongs exclusively to them.  In this way, dentistry – at least at the treatment plan decision-making stage – becomes effectively a “team sport”, in which all involved are meaningful participants.

So, despite how fervent a patient might be about having a certain dental or surgical procedure performed – whether, as here, the extraction of healthy teeth to allow for implant placement, or the fabrication of a fixed bridge on abutments which are periodontally compromised, or the removal of certain types of serviceable restorations for reasons not accepted as scientifically valid – it lies with the dentist to perform only those treatments which that dentist knows to be beneficial to the patient’s dental and overall health.  Patients most certainly should be part of the treatment decision-making process, but that involvement must not include demanding that which is unjustifiable.

Patients might sometimes present to their practitioners with unrealistic expectations as to what treatments are available to them, or unrealistic expectations as to potential results, so it is up to those practitioners to properly educate their patients regarding what is possible, or even probable, and what is not.  Not only does this uphold ethical obligations, but patients who are educated in advance are far less likely to take actions against their providers, because they have practical and genuine anticipations.

As distasteful as oral surgeons find malpractice suits, board actions can pose much more potent consequences, including potential license suspensions, continuing education mandates, or fines, which may be levied by dental boards.  Any inquiry from a state board is most prudently handled by an attorney, and not the oral surgeon him/herself.

Finally, actions like those of the subsequent dentist here are being seen with increasing frequency and are leading many patients, who might otherwise not do so, to seek out attorneys to sue their dentists and oral surgeons.  All, or at least most, dental practitioners are faced with situations in their practices when they see work done by others which they view as faulty or ill-conceived.  As a first matter, seeing an end result generally does not give the new dentist enough information in terms of the circumstances with which the prior dentist was faced, so as to be able to make an informed assessment about what did or did not happen at some point in the past, and what care by a dentist, or home care by a patient, took place in the interim.  But even when dentists appropriately disagree with an earlier treatment plan, or view the product that they see as inadequate, patients can be advised in a professional manner which does not encourage them find a lawyer or to institute litigation on their own.  It is not uncommon for a criticizer in one situation to become the criticized in another.

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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