Legal Case: Brain Abscess from Alleged Failure to Treat Periodontal Disease

 

Facts

A 47-year-old woman who worked as a high-end professional photographer – mostly doing weddings and other large parties – treated for decades with her general dentist. The only ongoing issue she had was periodontal disease, which initially manifested with generalized 4-6 mm pockets, and later progressed to deeper pockets with moderate generalized vertical bone loss. Approximately 4 years before the subject incident, the dentist referred the very compliant patient to a periodontist to further reinforce her good habits and great dentition.

The patient routinely presented every 3 months to the periodontist for scaling and curettage procedures, with occasional 2 pocket-reduction procedures. At various times over the treatment period, the patient had purulent discharge from her gingival sulcus at different locations. She maintained her regimen of brushing twice daily and flossing once daily, and always advised the periodontist when there had been the sulcular discharge. On certain visits, most particularly when the patient had described recent purulence, antibacterial rinses were prescribed.

At the patient’s final visit to the periodontist, she presented with active purulent discharge, which was noted by the periodontist. Additionally, the hygienist noted many 6-8 mm pockets during examination, so the dentist gave local anesthesia to the patient so that the hygienist could perform deep scaling and curettage. The patient was sent home after the procedure and asked to return in a month for follow-up. No other instructions were given, nor measures taken.

Eight days later, while home watching television, the patient experienced a seizure – the first of her life – which led to her being transported to a regional medical center; her state of consciousness was altered, so she was kept in the hospital for a neurological evaluation. Radiological studies demonstrated the presence of an intra-cranial fluid accumulation, which was determined to be either blood or pus. An emergency craniotomy revealed a significant amount of pus stemming from a brain abscess. Once drained, culture and sensitivity testing isolated Treponema denticola, a bacterial species found almost exclusively in the mouth, especially in periodontal lesions.

Following the surgery, the patient was placed on broad-spectrum IV antibiotics until the bacterium was isolated. The neurosurgeon then switched the patient to a Penicillin derivative, once the culture and sensitivity testing results were available. Despite progressing well, the patient spent more than two weeks in the hospital, followed by a month of physical and occupational therapy to address deficits associated with both the impingement of the abscess upon brain tissue, as well as the anticipated effects of the surgery. Ultimately, general recovery was reasonably good, but she lost some executive functions. A permanent sense of imbalance disallowed her from being able to climb onto ladders she had always used to get elevated photography shots; this caused her to end her career as a professional photographer. She took on other jobs which were more sedentary, but her loss of income was significant and provable.

Legal Stance

The patient became a plaintiff when her attorney filed an action against the periodontist, claiming that he was negligent in failing to detect the presence of infection, and failing to adequately treat it as part of his periodontal treatment, thereby permitting the involved bacteria to travel to the brain and grow, leading to surgery and permanent disabilities. As the case progressed, it became clear that the plaintiff’s attorney’s approach was that the periodontist should have given antibiotics to the plaintiff at the time of treatment, due to the presence of an acute infection, demonstrated solely by purulent discharge. It should be noted that the patient was quite diligent with her home care, so that she had no other visible signs of gingival problems, such as erythema or inflammation.

Issues Raised
The dento-legal issues are simple and straightforward:

Use of antibiotics: There may be as many views on the question of whether antibiotics are needed in the presence of treatment with an ongoing active infection, as there are antibiotics on the market. The general approach most frequently employed in the medical community these days is to minimize antibiotic use so as to minimize the risk for developing resistant bacteria which become very difficult to manage. Even the traditional preventive uses for antibiotics in dentistry (heart valve anomalies, joint prostheses) have greatly decreased, in large part due to scientific studies which have found the risk of infection at the time to be less than the greater risk of developing a "super bug".However, this case is not one of preventive or prophylactic use, but involves the question of whether an acute purulent infection requires antibiotic coverage if invasive dental care will be taking place within the area of that infection. Based upon consultations undertaken with dentists and specialists in infectious disease, the most pervasive line of thought was that prophylactic use of antibiotics (when no actual infection is present but rather when the goal is to prevent an infection from developing and potentially spreading) is shrinking, although it needs to be considered for each specific situation. On the other hand, many practitioners view an actual, acute infection differently: treatment should be directed at controlling an acute infection before intervening surgically when possible, and if that is not possible, then provide antibiotics at the time of or immediately following the intervention. Once again, we repeatedly found practitioners avoiding cookie-cutter tactics to this issue, but instead taking a case-by-case approach.

We took away from our discussions with experts that any of these approaches (especially when looked at in hindsight) can be criticized, so we take this opportunity to express the importance of dentists having solid, documented reasoning for all aspects of their patient care, prior to the development of complication(s).

The medical cause of the infection: The hospital record left no doubt that the bacteria which caused the brain abscess originated from the mouth and traveled vascularly to the brain. (We point out that in order for a case in malpractice to be successful, a plaintiff must prove that negligence in a procedure caused an injury, and not just the procedure.) So, the hospital record clearly spoke to the conclusion that the procedure was the causal basis for the bacterial spread, but it said nothing as to whether there was any dental negligence. This set up our defense to focus almost exclusively – or at least primarily – on whether there was negligence, and to focus less on the cause of the brain abscess or its effects, which all would agree were quite severe.

Deposition testimony: The one critical issue of the periodontist’s testimony was whether there was a need for antibiotics to have been prescribed, either prior to or immediately following the scaling and curettage. Of course, he testified that, in his opinion, there was absolutely no need for antibiotics in this situation. However, when asked for the definition of periodontitis, he stated that it is an infection of the tissues surrounding and supporting the teeth, and he agreed that the presence of purulence defined that infection as acute.

Result

The case was settled significantly below the dentist’s policy limits on the eve of trial for reasons discussed below. This decision was made with the written consent of the insured doctor, which was a prerequisite based upon the insured’s MedPro policy language.

Concerns Upon Case Resolution

We believed that a jury would undoubtedly conclude that the brain abscess arose from bacteria from the oral cavity, and the lost earnings claim alone could have amounted to the limits of coverage, without even considering the pain and suffering component. There was concern that the only factor up for real discussion in the jury room was whether the periodontist should have ridded the infection before intervening with instruments that create bleeding. We felt secure that our expert would set out a strong argument for judicious use of antibiotics, but we felt equally secure that the plaintiff’s expert would strongly argue that an admitted acute infection needed to be managed and controlled before the periodontist set up a situation for spread to a dangerous area.

Decisions on whether to settle or take a case to verdict are often cloudy, because less than ideal results come about even when proper care is supplied. Part of your defense team’s function is to fairly consider the risks, and one risk we consider is the potential for a verdict to exceed policy limits, which could put personal assets at risk. Here, in conjunction with the client, the decision was made to reach a known result.

Risk Management Tip

Almost any approach, especially in hindsight, can be criticized. It is vitally important that practitioners have solid, documented reasoning for all aspects of their patient care, prior to the development of complication(s).

 

William S. Spiegel, JD
Marc Leffler, DDS, JD

 

 

 

Disclaimer: Article originally published on DrBiCuspid.com 6/21/2016. The content within is not the original work of MedPro Group but has been published with consent from the authors. Nothing contained in this column is intended as legal advice. Our practice is focused in the state of New York, and there are variations in rules of practice, evidence, and procedure among the states. This column scratches the surface on many legal issues that could call for a chapter unto themselves. Some of the facts and other case information have been changed to protect the privacy of actual parties. MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. Visit medpro.com/affiliates for more information.