Caution! Do Not Automatically Reject Dental Malpractice Cases
The Cases That Are Not About Teeth Can Have Significant Value
BY: Julianna Merback Burdo, Esquire | Wapner, Newman, Brecher & Miller, P.C.
I believe that I stand among the very few who have consistently handled plaintiffs’ dental malpractice cases. Some of you reading this may already direct calls my way that you receive from disgruntled dental patients. But I suspect that the bulk of you have a well-established intake philosophy that instinctively turns away most of these callers. After all, plaintiffs’ lawyers who handle medical malpractice cases cling to the notion that the value of a dental malpractice case cannot possibly outweigh the case costs. Realistically, can any dental malpractice case yield a meaningful economic result for your firm or the prospective client? I implore each of you to keep reading and, in the future, be less inclined to hit the proverbial “No” button when calls from the prospective clients complain of care received by a dental provider.
The dental cases that I have litigated over the last two decades have consistently produced six and even seven figure results. My practice niche was born from working with my then-husband, a board-certified Periodontist trained at the University of Pennsylvania, who spent tireless hours teaching me about things like tooth preservation, esthetic smile zones, occlusal surfaces, and the importance of the oral cavity. I learned about dental radiographs and their critical role in the practice of dentistry. I developed a complex understanding of general dentistry and how it differs from specialized dental practices including prosthodontics, endodontics, periodontics, orthodontics, and oral and maxillofacial surgery. Through trial and error, I cultivated a dental malpractice business model that has one very simplified mantra: the best dental cases are the ones that have nothing to do with teeth.
More often than not, cases involving teeth – treatment of an existing natural tooth or a tooth which has been restored – translate into a conflict with the dental provider which is worth the same amount as the cost of the original treatment. Typically, in these “restorative” dental cases, a call is received from a disgruntled patient that their dentist placed a crown or even several crowns that never fit, required extensive re-adjustments, looked terrible, eventually cracked, and needed replacement. Cases involving braces by an orthodontist also tend not to work as teeth that are moved around improperly, in most instances, can be moved back. These are the cases that satisfy our rejection instincts even if this scenario extends beyond one tooth. Of course, there are exceptions to the botched restoration and orthodontic cases. We should all remain on high alert for calls that include “the dentist pulled out all of my existing teeth” or “I was promised a full set of new teeth in one day”. Sometimes restorative dental cases can work, but more often they fall into a category that I attribute to a long-time dental opponent: “Julianna, your client always had a mouth full of crap and now they have a mouth full of crap; what is your case about?”.
The cases to keep a lookout for, never automatically reject, and by all means send my way are cases that fall into four main categories. First are the cases that involve delayed recognition and treatment of oral infections that infect beyond the soft tissue (gingiva/gums) and invade the jawbone (upper jaw/maxilla or lower jaw/mandible), lymph nodes, or airway. Severe dental infections are typically abscesses where a pocket of pus is caused by a bacterial infection. Abscesses range from tooth abscesses requiring an extraction to an untreated abscess that results in sepsis or death. Other abscesses that can become life-threatening or have devastating consequences are those that obstruct a person’s airway. While abscesses tend to occur in the soft tissue of the oral cavity, osteomyelitis dental infections stem from an inflammation of the jawbone marrow, in the mandible or maxilla. Osteomyelitis is frequently but not exclusively associated with trauma and dental extractions. Due to its aggressive nature, osteomyelitis warrants swift identification and intervention by a dental provider. Early signs of developing osteomyelitis that are often dismissed as expected post-traumatic or post-operative symptoms include severe pain and an inability to achieve full mouth opening.
The next category of cases involves the delayed identification and treatment of oral pathologies. As a basic premise, all dental providers owe a duty to inspect the oral cavity for suspicious signs of oral cancers. Almost all cancers in the oral cavity are squamous cell carcinomas which start in squamous cells that form the lining of the mouth and throat. Oral biopsies are the standard of care once an oral cancer is identified. Beyond oral cancers, be on the lookout for instances where a concerning pathology is identified radiologically, such as an odontogenic cyst, that should have been appreciated earlier. Delayed appreciation and treatment of oral cancers and cysts can lead to aggressive surgical resection of the jawbone or loss of the tongue, uvula, and tonsils.
Then there are cases involving injuries to one of the trigeminal facial nerves resulting from 3rd molar/wisdom teeth extraction, root canal therapy, implant placement and intra-oral injections. These cases often result in permanent nerve damage which never fully recovers despite nerve revision surgery. Nerves that are most often injured are the lingual nerve and the inferior alveolar nerve (IAN). Injury to the lingual nerve generally results in tongue numbness and a loss of the ability to taste while injury to the IAN will reveal itself through pain or abnormal sensations in the chin, lower teeth, lower jaw, and lower lips. Damage to either nerve may also produce speech difficulties. Trigeminal nerve injury cases typically have two components: one, was there a departure from the standard of care that caused injury to the nerve, and two, did the dental provider manage the patient properly in the post-operative period once the patient exhibited signs of a nerve injury. Patients with known trigeminal nerve injuries require timely referral to a nerve revision specialist as injuries to those nerves are associated with a definitive window of opportunity for surgical intervention.
Cases with the most devastating outcomes tend to involve dental providers who put their patients to sleep in their office under general anesthesia. These dental cases most commonly involve oral and maxillofacial surgeons (OMFS) who are trained in all forms of sedation including general anesthesia. Unlike anyone else in medicine, trained dental providers like OMFS can provide deep sedation and general anesthesia on their own to their patients during the performance of the surgical procedure. Known as the single operator model, OMFS function by having their dental assistants who have no medical training help monitor the patient’s vital signs. Only the OMFS can start an IV, determine which medications to use, respond to concerning vital signs, manage the airway, and direct resuscitation. Case reports involving adult and pediatric dental patients placed under general anesthesia have shown devastating harm ranging from nerve damage to strokes, and from heart attack to death.
The four case categories are not intended to exclude other case types that involve significant and permanent damage caused by dental care. My goal was to provide each of you with some degree of substantive information about dental medicine and how life-altering injuries can arise from a trip to the dentist. From my play book to yours, the tip of the day, please remember that case calls regarding dental malpractice should be handled as judiciously as medical malpractice inquiries.
Reprinted with permission from the 04-05-2022 issue of The Legal Intelligencer Medical Malpractice Supplement.
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