Ian Murray was an active and energetic 30-year-old man who was employed as a brewmaster at a local craft brewery in a small, up-and-coming suburb. Due to his personality and likability, Ian's career at the brewery was taking off.
Posted in Risk Management on Tuesday, May 31, 2022
Being from a small town with few options for dental providers, Ian and his family had been patients of Dr. David Brewer, an established general dentist, for over 20 years. Although he saw Ian’s parents regularly, Dr. Brewer only saw Ian sporadically once he became an adult due to Ian’s busy schedule and a lack of dental insurance.
Sporadic Treatment Begins
Ian presented in February 2010 for a regular exam and oral hygiene treatment and returned six months later. Dr. Brewer didn’t notice anything significant at this appointment.
Ian returned five years later, at which time four bitewing x-rays and a Panorex film were taken. Dr. Brewer noted that no decay was found, however, he did find a radiolucent area distal to tooth #18 where #17 had been removed some years previously when Ian was a small child. Dr. Brewer noted in his records to watch the radiolucent area of #18 and noted that the area was asymptomatic. The patient left in good condition with a six-month follow up appointment scheduled for August 2015.
The patient returned 18 months later in February 2017 for an exam and prophylaxis. Dr. Brewer was not present for the appointment and Ian was seen by Dr. Brewer’s dental hygienist instead. Under state law where Dr. Brewer presides, a patient can receive dental hygiene treatments and evaluation in the absence of the doctor’s physical presence in the office. There are prerequisites for this happening, such as the patient having been seen by the dentist within the preceding year and the patient’s medical history having been updated within the preceding six months.
Prior to the scheduled visit, the hygienist consulted with Dr. Brewer regarding the upcoming visit. Dr. Brewer requested that the hygienist take four bitewing x-rays. The hygienist didn’t note anything unusual on the x-rays and documented that there was no need for further evaluation by Dr. Brewer. Ian was discharged and scheduled for a six-month follow up in August 2017. Dr. Brewer did not review the x-rays or documentation from this visit when he returned to the office.
Ian failed to keep the August 2017 appointment but returned more than a year later. Exam and prophy was completed along with four bitewing x-rays. Ian complained of pain in his retro molar pad on #18. Dr. Brewer documented the gingiva was red and swollen but there was no decay or infection noted. Dr. Brewer instructed the patient to monitor the symptoms and return if they continue. Exam and prophy were scheduled for six months.
Ian returned two weeks later stating he was still having pain and experiencing off-taste sensations at random times which were affecting his job. Also, the patient could not fully open his mouth. Dr. Brewer found tissue drainage behind tooth #18. A Panorex was taken. Dr. Brewer found a large area of “concern.” He referred the patient to an oral surgeon and took a picture of the area to show the patient.
Dr. Brewer followed up with the patient who advised he was being treated by the oral surgeon. Dr. Brewer reached out to the oral surgeon, who advised the patient was being treated for odontogenic keratocyst. A biopsy report received by the oral surgeon necessitated the patient be sent to another specialist, an otolaryngologist, with a focus on head and neck cancer. The specialist determined the patient was suffering from an ameloblastoma, and although benign, it was potentially locally aggressive. The specialist was recommending mandibular resection and reconstruction using a fibula free flap, requiring harvesting of bone from the patient’s fibula. He also expected the removal of two teeth and the need for implants. Surgical intervention was the only option.
The surgery progressed as planned, lasting approximately 10 hours. The subsequent biopsy of the removed bone reflected the margins were clean and as such, the entire mass has been removed without any remaining abnormal cells. Ian was hospitalized for one week.
A Claim is Filed
After surgery, Ian filed a malpractice claim against Dr. Brewer. The claim alleged three causes of the action:
- Professional negligence
- Respondeat superior against Dr. Brewer’s professional corporation
- Punitive damages
An expert review of the records ensued. A review of the records by another general dentist resulted in an opinion that Dr. Brewer fell below the standard of care. He noted three areas of concern:
- Not referring Ian to an oral surgeon upon identifying the radiolucency initially on the x-ray in 2010
- Not documenting a review of the notes or x-rays when the patient returned in 2017 during his absence from the office and when the patient was seen only by the hygienist
- Not meeting the state requirements for allowing a hygienist to treat a patient in his absence.
The patient was left with a scar on his jaw, possible visible bone deficit of the jaw and a large scar from the fibula graft. Economic damages alleged exceeded $250,000. As this situation included what is considered permanent physical damage under state law, the cap on non-economic damages is limited to $500,000.
Case Review with Defendant
Dr. Brewer conceded that, in retrospect, he should have referred Ian to an oral surgeon when the radiolucency was first noted. He also agreed that he failed to monitor and express the need for regular and consistent follow up with the patient due to his “concern.” Finally, he also admitted he did not review the x-rays or notes after the patient was seen by the hygienist in his absence or complied with state regulations for allowing staff to treat the patient in his absence. For these reasons, it was agreed that settlement discussions should ensue.
What Can We Learn?
- It is important as a provider to follow state regulations if you allow your staff to see patients in your absence. And, after such a scenario, review of the records and documentation of your review is paramount. As the primary provider, you are responsible for the actions of those under your direction.
- Follow up with the patient is always recommended when a patient cancels an appointment. Inquire why the patient has cancelled and offer to reschedule. Follow up becomes more important if there are outstanding health issues you deem might evolve into bigger issues. If the patient does not respond to your attempts to contact them, you can send a certified letter stating the importance/need for follow up. Document your efforts to reach the patient. Generally, after three attempts to reach the patient, using methods such as the telephone and mail and various intervals, and assuming you are not in the middle of a treatment plan, it is acceptable to dismiss the patient due to their non-adherence to your treatment plan.
- Early referrals can make or break a case. When a potential “concern” is presented, refer the patient to a specialist. If the patient does not want to incur that extra time or expense, it is a “not an option” situation. Make the patient understand that this referral is in their best interest as additional expertise is necessitated. Document your records accordingly.