October 2017

Standard of Care Met But Inadequate Office Practices Lead to Malpractice Suit

Mario Catalano, DDS, MAGD


Although most dental malpractice lawsuits involve an allegation that a deviation from the standard of care occurred, occasionally cases are filed where the standard of care was met but inadequate office practices contributed to a treatment-related injury or a disgruntled patient. The circumstances in this case illustrate the role that nonclinical practice can play in avoiding professional liability.

Case Discussion

Dr. J recently completed a general practice residency at a major medical center. His residency included extensive surgical practice, and he was comfortable performing most complicated extractions. After his residency, Dr. J joined a three-dentist general practice.

A 25-year-old female patient presented to the practice with complaints of pain in the right molar area. A panoramic X-ray indicated that tooth number 1 and tooth number 32 were causing the pain. These teeth, however, were not salvageable because they had significant carries. The patient agreed to a treatment plan to extract both teeth. She scheduled an appointment for the extraction in 2 weeks and was sent home with antibiotics.

When the patient returned for her appointment and prior to the extractions, Dr. J discussed the elements of informed consent with her in the presence of his chairside assistant. However, an informed consent form was not presented. The owner of the practice believes that the information on informed consent forms alarms too many patients and thus they avoid necessary treatment.

After discussing the informed consent, Dr. J extracted the teeth. Tooth number 1 was removed without difficulty. Tooth number 32, however, required an incision and the removal of some bone. After the extractions, the patient received a prescription for a mild analgesic and was discharged.

Dr. J reviewed Mr. G's health history and the X-ray, and conducted a brief physical examination. Mr. G insisted that he wanted the tooth extracted because the pain had prevented him from sleeping for the past 2 nights. Dr. J extracted the tooth without any difficulty.

The patient contacted the office the next day, stating that she was in severe pain. Dr. J prescribed a stronger analgesic. However, when she called the following day, she reported swelling. Dr. J prescribed an antibiotic and advised her to call back if her condition worsened.

The patient’s condition did not improve, and when she contacted the office 2 days later, she was having trouble opening her mouth and swallowing. A physical examination indicated trismus and significant swelling. Additionally, it was not possible to do periapical X-rays because the patient could not open her mouth widely enough. Dr. J prescribed a second antibiotic and told her to return to the office in 3 days.

By the next appointment, the trismus had only slightly improved and the swelling remained significant. Dr. J referred the patient to an oral and maxillofacial surgeon (OMS) for consultation and treatment, if necessary. She received a written referral to an OMS to which the practice commonly refers.

When the patient contacted the OMS’s office, she discovered that her insurance was not accepted, so she canceled her appointment. She located another OMS and made an appointment. The OMS performed a cone beam computed tomography (CT) and treated the fractured mandible found on the CT. The patient recovered in about 6 weeks.

Approximately 3 months later, the practice received a request from an attorney for a copy of the patient’s records. The practice manager discussed this request with the practice owner. However, because of miscommunication, the records were never sent to the attorney.

Ultimately, a lawsuit was filed against Dr. J and the practice, alleging inadequate informed consent, malpractice, and failure to provide a copy of the patient’s records when requested.

Although it appeared that the case could be defended from a standard of care standpoint, the treatment records were poorly written. Additionally, the lack of written informed consent was complicated because the assistant who had witnessed the verbal consent was now permanently ill and therefore unable to verify that the conversation had occurred.

Finally, this case occurred in a state where the failure to promptly provide copies of the record when requested is a significant legal violation, causing the plaintiff’s attorney to request all records of the case be disqualified as evidence. Dr. J’s insurer could not defend the case, so it resulted in a payment on his behalf and a report to the National Practitioner Data Bank (NPDB) in his name.



Risk Management Considerations

Theodore Passineau, JD, HRM, RPLU, CPHRM, FASHRM

From an analytic standpoint, this is an interesting case because nearly all MedPro dental claims that result in a payment involve an allegation that a deviation from the standard of care occurred. According to MedPro Group’s Dentistry Specialty Report, 92% of paid claims involved a treatment-related failure, and of those cases, 85% involved a failure of technical skill.i However, no such deviation exists in this case. Nevertheless, Dr. J found himself enmeshed in a case that ultimately resulted in a payment and a report to the NPDB.

One aspect that Dr. J did have some control over is the quality of the documentation. The documentation was minimal and did not describe the patient’s condition upon initial presentation, the process of care, and the patient’s condition after the care was rendered. Simply stated, documentation is a—if not the—critical component in the defense of any malpractice case.

The practice owner’s philosophy regarding written informed consent was also not helpful in this case. The owner’s perspective—if a patient is fully informed of the risks of treatment, then he or she will decide against needed care—leaves the practice vulnerable to an allegation of inadequate informed consent. Although it is true that some patients may refuse care once they learn all the risks, the specific objective of informed consent is to ensure that patients are aware of all risks associated with a procedure.

If the patient is properly informed of his or her condition, the recommended treatment, and the reasonable alternatives as well as the risks, then he or she can make an informed decision. Well-structured informed consent forms should educate patients, not discourage or scare them. For many reasons, it is recommended that written consent forms always be used with the informed consent discussion.

The final issue involved the failure of the practice to comply with an applicable law regarding the release of medical/dental health records. The Health Insurance Portability and Accountability Act (HIPAA) and many states’ laws allow patients complete access to their protected health information. HIPAA and some states’ laws also indicate a specific time frame for that information to be supplied to the patient (or a designee) when requested. In this case, the failure to comply with these simple requirements contributed to great difficulty in defending what was otherwise acceptable dental practice.


The practice of dentistry is more than just drilling and filling. Attention to the nonclinical aspects of patient care and customer service, including informed consent, documentation, and records release, can facilitate doctor–patient relationships that are safe, efficacious, and enjoyable.


How should a young associate practice appropriate nonclinical dentistry when it is not a normal part of the practice culture?

iMedPro Group. (2015, April). Dentistry Specialty Report. Retrieved from https://www.medpro.com/documents/10502/3643477/Dentistry+Specialty+Report.pdf.


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