Traveling OMS’s Failure to Follow-Up on Oral Lesions Leads to Lawsuit

Case Study

Marc Leffler, DDS, Esq.
May 18, 2023

Reading time: 8 minutes

Background Facts

As Dr. O, a young oral and maxillofacial surgeon, built his own practice, he spent 2 days each week traveling to other dental offices which would schedule patients for him to evaluate and treat; depending upon the needs of those offices, his calendar would take him to those offices every 2 weeks for the busier ones, to every 6 weeks for the more lightly scheduled facilities.

Dr. O evaluated P, a 36-year-old female schoolteacher, mother of 1, and wife of an attorney, who had been set up to see him by a general dentist in one of those offices.  P complained that her heavily restored mouth was causing her to repeatedly bite the left side of her tongue, as she had pointed out to the hygienist and her dentist the prior month at a recall visit.  She reported a benign medical history, daily wine drinking (1-2 glasses) with occasional cocktails over the weekend, and having smoked approximately ½ pack of cigarettes per day from her college days until she became pregnant 4 years earlier.

On examination, Dr. O found bilateral posterior crossbites in the molar regions, with some rough amalgam fillings on teeth 14, 15, 18, and 19, adjacent to an erythematous, erosive area on the left lateral border of the tongue, which he recorded in the chart as “red eroded left tongue due to old restorations on maloccluded teeth”.  There was no description provided as to the size of the lesion or its anatomical borders, nor were any photographs taken or drawings made.  Dr. O explained to P that the problem was most likely continued biting, so he used a series of burs to smooth out the sharp and rough areas.  He also suggested placing a topical over-the-counter ointment on the tongue until it “calmed down”, before discharging P with assurances that she should not worry about it.  Finally, he told P that she should feel free to return to see him if she had any concerns.

At a restoration visit about a month later with the general dentist, the lesion was noted and P was asked how it felt to her, to which she responded that it was essentially the same.  The dentist charted the interaction and reminded P to keep an eye on it and notify the office of any changes in appearance or feel.  When P next presented for a rescheduled recall visit some 9 months later, the hygienist said that the tongue area appeared more eroded and angrier looking than she remembered it to have been the last time, so she brought it to the attention of the dentist, who did not have specific recall of it and saw no documentation to aid his memory as to the details.  Because Dr. O would not be returning to the practice for nearly 3 weeks, P was referred to an oral surgeon in the neighboring town.

Upon obtaining P’s medical and social histories, and examining P, this oral surgeon determined that the erosive lesion ought to be biopsied and examined histologically.  The oral pathologist reported a biopsy diagnosis of squamous cell carcinoma, leading to P being referred to a head and neck surgeon for treatment.  Following an oncologic work-up, P was found to have Stage III disease requiring ablative surgery extending through the floor of the mouth, followed by radiation therapy and the subsequent potential for chemotherapy. 

P took a year-long leave of absence from teaching, but was paid for only 2 months of that time, although her health insurance remained in force to defray the major portion of her medical expenses.  She had – and continues to have – difficulty eating, leading to undesired weight loss, altered speech, a great sense of self-consciousness about her changed facial appearance, and a decreased ability to care for her child.

Legal Action

Once the more invasive aspects of her care were completed, P consulted with and retained an attorney to look into whether Dr. O or anyone else had committed malpractice on her.  After gathering all of P’s dental and medical records, the attorney obtained opinions from an oral and maxillofacial surgeon, the head and neck surgeon who had treated P, and an oncologist.  Based upon those opinions, the attorney believed that he could readily demonstrate negligence on the part of Dr. O, but that he might have a more difficult path showing that P’s injuries and damages were caused by Dr. O’s negligence: the issue would be whether P was any worse off as a result of the approximately 10-month delay in diagnosis and the subsequent start of treatment.

The attorney discussed these issues with P and also advised her that her having rescheduled the recall visit – which led to her referral to the second oral surgeon – for 2 months after it had initially been scheduled would be viewed as a time delay attributable to and caused by her, rather than Dr. O.  With full understanding, P wanted to move forward against Dr. O, and her attorney did so on her behalf.

As discovery unfolded, the weaknesses in Dr. O’s care, most particularly relating to his failure in following up, became clear to Dr. O’s counsel.  But the litigation issue which would be critical was whether the 8-month net delay that could be tied to Dr. O was enough to lead to a jury finding of malpractice (negligence directly causing injury) against Dr. O.  Dr. O’s expert oncologist would testify, in essence, that P’s treatment and outcome would have been generally the same even if diagnosed at the time of Dr. O’s sole visit with P, while P’s experts would argue that the delay meant that the surgery performed was more invasive and wider, and that P’s chances for ultimate cure were substantially reduced by having a carcinoma sit untreated for close to a year.

The judge overseeing the case was experienced with professional malpractice matters and very hands-on, so she involved herself repeatedly in mediation-type meetings with counsel, trying to work toward a settlement before trial.  The judge took something of a mathematical approach to resolution, discussing with counsel that she saw negligence as clear, which, in her experience, statistically tended to make jurors more likely to also find against doctors on the causation issue, especially when complex medical issues were at play.  Whether that would have come to pass in this situation is unknown, because both sides recognized the risks of going to trial and agreed upon a settlement amount which compensated P directly for her lost earnings and out-of-pocket expenses, while providing a lesser amount than sought for the lifestyle damages P was claiming.   P received an award, albeit less than she had hoped for, and Dr. O was protected against a potential “runaway verdict” by a jury.

Takeaways

During practice building years, if not as an ongoing practice style, especially with tuition loans of significant amounts, it is far from uncommon for oral surgeons to travel to and treat patients in other practitioners’ offices.  In addition to issues relating to the availability of surgical instruments and anesthesia emergency drugs and equipment, staff members trained to assist with resuscitative events, adequate diagnostics, and after-hours accessibility for patients with concerns – none of which are addressed in this case study – follow-up appointments at times when the visiting oral surgeon will be present are worthy of consideration.  This case study makes clear the logistical issues of scheduling of patients to address an ongoing condition with a visiting oral surgeon, and magnifies the importance of making detailed notes if practitioners other than the oral surgeon will be making clinical judgments based upon prior events.  From a big picture perspective regarding oral surgeons who visit multiple offices, the standard of care for oral surgery practice does not differ even when the doctor has no home base or multiple ones.

But putting the lack of practitioner continuity aside, an argument can be made that the assurance provided to P as she left her visit with Dr. O did not appropriately emphasize the potential for the situation not to improve, especially given this patient’s social history (although P’s social habits placing her at greater risk for oral cancer might be viewed as being of a lesser magnitude than is more traditionally seen in such patients).  More importantly, though, he gave the patient the message that it was acceptable, but not mandatory, to return to see Dr. O, but only if she perceived that the situation was not moving in a positive direction.  The risk of putting the judgment of progress into the hands of a lay patient, particularly when the area at issue is difficult for a patient to visualize and with high potential severity of the condition, is fraught with problems.  Some patients will minimize problems in their bodies, due to fear, even if they are able to detect what is happening; some patients will reach the conclusion that, if the doctor did not see anything of concern, they need not keep it in the forefronts of their minds; and some patients will wrongly presume (as here) that, if the doctor wanted the patient to return, the patient would have been so advised with an appointment made.  It is common and generally appropriate for doctors to ask patients to keep them apprised of progress, but that is not a replacement for the doctor to perform an eyes-on assessment to assure that the patient’s reporting is accurate.

Finally, as we have stated in previous studies, a successful plaintiff claiming malpractice must prove that there was a (1) departure from the standard of care which (2) directly caused (3) damages; all 3 components, or elements, must be proven by the plaintiff through expert testimony, or the claim will fail.  Here, experts for both parties agreed that Dr. O did not diagnose what was there to be diagnosed, and he made inadequate provisions for follow-up.  So, we reiterate that cases in which the claim is the failure to diagnose – or more commonly a delay in diagnosing – a malignant lesion, the causation component required for a plaintiff to prove a case will often hinge upon whether an earlier diagnosis would have made an appreciable difference in the end result.  As a general construct, the shorter the time delay in diagnosing, the more difficult is the ability to demonstrate that the delay shortened the patient’s life, or made surgery more complex, or made recovery less palatable.  The lack of a definitive sense regarding causation, by both parties, is what paved the way toward a compromise settlement.

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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