It's not often that dental appointments end in police calls. In this case study, an upset patient phoned the police after becoming confused about his procedure. What happened afterward? Hint: Records and documentation likely saved the day.
Posted in Dental Insights on Wednesday, September 29, 2021
Martin White, 47, was on disability and public aid. He seldom visited the dentist and only sought care when he had pain or difficulty with his teeth and mouth. He had missing teeth, few restorations, extensive decay and older fillings. Some teeth had been treated endodontically.
Martin had numerous medical issues that included diabetes, neuropathy, thyroid issues, a blood pressure condition and leg and stomach ulcers, among others. He also was being treated for psychological problems. His medications list was lengthy.
Martin's dental history from 2006 to 2016 included that nine teeth had been extracted by an Eastern European dentist whose name he did not recall. Martin indicated, subsequently, that he did recall a process of consent to those extractions. This would help establish that he understood the process of consent.
The Initial Recommendation and Treatment
In 2016, Martin saw general dentist Dr. Michael Amir for the first time, for a general cleaning and initial exam. After his initial exam, Dr. Amir recommended:
- Extraction of teeth 13 and 4
- Composites on teeth 14 and 8.
- Possibly placing a crown on tooth 30 in the future.
Martin signed a general informed consent form for the extractions. Dr. Amir removed teeth 13 and 4, and placed composites on teeth 14 and 8, all without complication. Dr. Amir’s notes were short, succinct and did not include much detail as to dental or medical history, medications, pre-procedure discussions or the procedures themselves. Discharge instructions, by way of a form, were provided.
One Year Later
Martin returned to Dr. Amir 12 months later. He testified that he went to Dr. Amir because of pain in the lower right, in the area of teeth 28 and 29, and a “broken tooth” in the upper right (tooth 5). Four bitewing films were taken. Upon exam, as well as radiographically, Dr. Amir diagnosed:
- Tooth 28 was causing the problems.
- Tooth 5 had very extensive decay and likely a fracture and recommended it be extracted, as well.
According to Dr. Amir, Martin wanted to attempt a short course of antibiotics to attempt to resolve the issue. A prescription was written for amoxicillin, and Martin was to return in four days. Martin returned as planned and Dr. Amir recalled, at the time, that the antibiotic had not completely resolved the pain and swelling, but it did lessen both. Dr. Amir said he discussed with Martin his recommendation to proceed with the two extractions and one filling. Martin signed the same general informed consent form for extraction as he had signed for the extractions a year prior. Dr. Amir placed the filling on tooth 29, and proceeded to remove teeth 28 and 5, without complication.
At the end of the procedure, while still in the chair in the operatory, Martin became quite agitated. The records of Dr. Amir from this date are scant — they only reflect the signed consent form, procedures done and discharge instructions given. There is no further detail in the chart.
At this point, Dr. Amir and Martin’s recall of events differ significantly.
Martin testified that as soon as Dr. Amir completed the extractions, he became very upset and pulled the “mouthpiece” out when he realized that the tooth he’d had removed was “the wrong tooth.” Martin claimed it was really tooth 29 that was supposed to be extracted, not tooth 28. He dramatically testified that at that point Dr. Amir grabbed his arm and physically tried to pull him out of the chair, telling him to, “Get out!” Martin testified that Dr. Amir physically pushed him out of the operatory and down the hall into reception.
While in reception, Martin’s mouth started to bleed, and he claimed that he wasn’t given gauze to stop it. He called the police and an officer arrived soon after. Dr. Amir came out to reception, and the police officer told Martin this was not a criminal matter, that he should go to another dentist’s office down the street. Martin went to that dental office where they took a panoramic film that showed that tooth 29 was never extracted. They did not render any treatment. No police report was filed.
Dr. Amir, contrary to Martin’s testimony, testified that he never physically assaulted, improperly touched or refused treatment to Martin. He never pulled or pushed Martin, or refused to give him gauze, nor did his staff. He would never treat his patients in such a manner. He testified that that there was a proper evaluation, clinically and radiographically, and then a discussion about which teeth were to be pulled and why.
The two visits gave adequate opportunity for evaluation, discussion and agreement. Dr. Amir agreed that Martin was agitated at the end of the procedure, and thought he was upset about the upper tooth number 5, which was, in fact, fractured. He testified that tooth 29, which Martin claimed was the tooth he wanted extracted, was saved by way of a filling.
Within a few days of this event, Dr. Amir was served with a letter from a plaintiff’s lawyer demanding to settle this case, claiming a wrongful or unconsented extraction. No money was offered by either the doctor or his carrier. Approximately five months later, a complaint was filed and served on Dr. Amir. The complaint was supported by a report from a general dentist critical of Dr. Amir for extracting the “wrong tooth.” That reporting dentist practices dentistry part-time, with a large portion of his time devoted to expert consulting in dental malpractice cases, exclusively on behalf of dental patients who claim to have been wronged. This dentist also noted that the informed consent was insufficient under the standard of care because the informed consent forms did not identify the tooth numbers. That complaint asserted intentional actions, and as such supported a claim for not only compensatory damages, but also punitive damages.
Dr. Amir was absolutely confident in his care and treatment and adamantly denied any wrongdoing or poor care of this patient.
The case proceeded in court. Martin gave a deposition in which some of his statements were contradictory. He seemed to have remembered more details at the time of his deposition, particularly about the physicality of Dr. Amir pulling him out of the chair and pushing him down the hallway. Nothing in the original letter from the lawyer a few days after the incident referred to any such type of claim, only the alleged wrong tooth extraction. Martin claimed no “psychological” damages, but testified he was embarrassed and humiliated by the claimed wrongfully extracted tooth 28, and the pushing, shoving and rudeness of Dr. Amir and his staff in front of his girlfriend, who had accompanied him to the office. These were the facts he cited in deposition to support his claim for damages.
Dr. Amir's Testimony
Dr. Amir testified that he had two discussions with this patient about the recommended procedure, which included the teeth to be extracted. He advised that while it would be better if the form identified the tooth numbers, regular patients don’t know tooth numbers, so the more important part of the consent is the doctor and patient discussion. Martin admitted he never asked any questions, that he knew the consent process with Dr. Amir from the extractions the year before and with his previous dentist. This, Dr. Amir testified, was a proper and informed consent, and there was a proper basis for the recommended care which Martin agreed to. Dr. Amir agreed his records could have been more detailed, but he was able to explain in deposition his rationale and the events fairly well.
The Consultant's Feedback
The consultant for the defense believed the case was wholly defensible. The consultant felt the plaintiff’s expert report was sloppy, lacked detail and contained mistakes, showing a strong inattention to detail. The consultant, however, noted two weaknesses: the failure to identify the teeth by number in the consent form, and that Dr. Amir’s records were sparse. In addition to the consent form not having teeth numbers, there was little indication of a detailed discussion of history or medications. While these facts may not have had a causative effect on any damages, the consultant indicated this would be “fertile ground for cross examination and a claim by their expert that sloppy records would equate to sloppy care.”
The End Result
The final factor in the case was related to the factual disputes between Martin and Dr. Amir, or the doctor’s word versus the patient’s word. Disputes of fact and credibility of witnesses are questions for a jury, not a judge. Dr. Amir presented well at deposition, and while Martin was a bit inconsistent and not overly sympathetic, most witnesses are more prepared for trial testimony. Considering all factors, and with input from all involved, Dr. Amir felt strongly that the case should not be resolved, despite the risks inherent to any trial.
Before the case proceeded to expert deposition however, plaintiff’s counsel voluntarily dismissed the case. The time to refile passed and the case was completely dismissed.
While one never knows for certain the reasons a case is voluntarily dismissed, Martin’s counsel indicated that it would be too expensive to bring to trial. There were concerns that their expert costs might not be justified by what the lawyers thought a jury would award, if the jury agreed with their liability case. Likely the damages in a claim of “humiliation” for a single wrong tooth extraction would likely not have a large verdict potential.
What Can We Learn?
In this case, the substantive dental care as related to the alleged injury of a wrong tooth extraction was overall very defensible. While there were some areas that would have made the substantive defense much stronger, i.e. a tailored consent form, narrative progress note initialed by the patient identifying the process of consent with the basis for the recommended procedure and the patient’s understanding of which teeth were to be extracted, a diagram or picture of the teeth to be extracted, the medical and dental history, etc., Dr. Amir was luckily able to fill in some of these details at deposition. More detail and personalization in the documented consent process will always benefit the practitioner.
Having strong and detailed records, tailored in all ways to that patient can guard against a suit because that is the first thing every lawyer and consultant will look to when suit is contemplated. Even though this was a very plaintiff-oriented expert, if the records had been more detailed, even an expert such as this one might not have been able to support a claim.
Details in a record are very powerful because they were recorded before an untoward event occurred. Records are not affected by bias, memory or time. Had some or all of these kinds of details been included in the chart, there may never have been a lawsuit. The written record is most often the most important witness in a case. It can have great impact on a he said/she said case by bolstering a practitioner’s credibility. Commitment to keeping a thorough and detailed record is one of the best ways any practitioner can protect and defend against a claim or lawsuit.