A patient experiences nerve damage after a routine tooth extraction. Could an informed consent form have saved this dentist from a five-figure settlement?
Posted in Dental Insights on Monday, February 17, 2025
Patient care should always be your top priority, even when another dentist fills in for you. Clear communication and planning can help pave the way.
Dr. Ken Pate, DDS, a general practitioner, had to suddenly take a leave of absence when his wife became ill. He quickly pulled together a group of practitioners to care for his patients while he was out.
He thought of Dr. Frank Alan, DDS, another general practitioner in the area who recently sold his practice to semiretire. Dr. Pate called Dr. Alan and learned he was working as an independent contractor, and had maintained his licensure and insurance coverage.
Consequently, Dr. Pate retained Dr. Alan to work in his practice one day a week for the next eight weeks.
Dr. Alan Assumes Details Are Handled
When filling in for Dr. Pate, Dr. Alan would come in and review the day’s schedule, which would include a list of treatments Dr. Pate had previously recommended. Dr. Alan would not evaluate the patients for care, but would merely perform the recommended procedures. Though Dr. Alan enjoyed being able to continue to practice dentistry, he also appreciated leaving behind the headaches of running a business and administration of a dental practice.
Dr. Alan did not typically see patients for follow up, nor did he have much interaction with the staff. He just assumed the administrative and paperwork matters were handled properly by staff, just as they had been with his own practice. As a result of these assumptions, and because he was filling in for Dr. Pate on a temporary basis, he did not worry about the details.
One day, one of Dr. Pate’s patients, 27-year-old Mark Terry, came in for a simple extraction. Dr. Alan was filling in that day, and according to the notes, Dr. Pate had already discussed the matter with Mark. Dr. Alan simply reviewed the chart and proceeded to remove the tooth without incident.
Two days later, Mark called the office complaining about a loss of sensation in the area of the removal. When he came in to have it checked, he was seen by another fill-in dentist who determined that Mark had sustained a nerve injury as a result of the extraction. Dr. Alan was not contacted about the problem and never saw the patient again.
A Lawsuit Follows
Shortly after the nerve damage was identified, Mark Terry filed a suit against both Dr. Alan and Dr. Pate. As part of the suit, Mark claimed that neither doctor had obtained his informed consent for the procedure. He claimed that had he known about the risk of nerve injury, he would not have agreed to the extraction.
Review of this matter by a defense consultant revealed some problems with this case. The records showed that Mark had never signed an informed consent form. What’s more, there was no documentation that either Dr. Alan or Dr. Pate had specifically discussed risks of the procedure with him.
Dr. Pate’s charts did include a brief note stating that he had discussed the extraction with Mark. However, it did not specifically address whether he had obtained Mark’s informed consent.
As for Dr. Alan, he said he didn’t discuss the procedure with Mark in depth. He had assumed that Dr. Pate had handled the informed consent discussion during the consultation and that staff had taken care of the paperwork. Dr. Alan made this assumption because that was how his own office used to handle the informed consent process.
Strategies of the Plaintiff
Mark Terry worked in sales and took pride in his appearance. His nerve injury was evidenced by drooling, difficulty drinking and numbness in his lip area. Mark testified that when he entertained prospective customers, saw friends socially or went out on dates, he became extremely embarrassed by his condition. This was especially true whenever he had to eat or drink in front of others. Mark further testified that Dr. Pate briefly discussed what a root canal entailed and that an extraction was his only viable option. Mark vehemently denied, however, that Dr. Pate told him that nerve injury was a risk associated with the extraction procedure.
As the litigation process progressed, the plaintiff ’s attorney tried to get Drs. Alan and Pate to criticize each other to drive a wedge between them. The lawyers for both dentists tried to work on a united front; however, neither Dr. Alan nor Dr. Pate could establish with certainty that they had obtained Mark’s informed consent.
Moreover, the testimony of Dr. Alan and Dr. Pate, as well as that of Dr. Pate’s staff, suggested that very little was said to patients—or to the substitute practitioners—about Dr. Pate’s absence. Mark testified that he was told Dr. Alan would see him because Dr. Pate was unavailable and that Dr. Alan was familiar with the procedure Dr. Pate had recommended. The staff did not dispute this testimony.
Lack of Documentation & Communication
While the attorneys for Drs. Pate and Alan were able to find experts to defend their care, there was not conclusive evidence that proper informed consent was obtained. Dr. Alan’s charting on the extraction itself was scant. Though the dentists might be able to explain the care provided, the experts did not have much hard evidence to back it up.
The expert for the plaintiff came across as solid and savvy. He opined that if it wasn’t documented, it didn’t happen. He relied heavily on the absence of records to conclude there were deviations in the standard of care.
The overall view of the testimony was that there was very little communication with this patient on critically important issues, and that Mark was convincing in that he didn’t know about the procedure’s risks before it was performed. The following aspects of the case were also troublesome:
- Dr. Alan’s scant records
- Dr. Alan’s admission that he did not review the patient’s history or chart in detail before each procedure
- Dr. Pate’s office practices of being somewhat tight-lipped about his leave of absence
- Dr. Pate’s disorderly introduction of Dr. Alan to patients
In light of these factors, the dentists and their defense teams decided it would be advisable to attempt to resolve the case before trial. Accordingly, this case settled prior to trial in the high five figures.
What Can We Learn?
While this case is especially relevant to dentists who retain independent contractors or who hire part-time practitioners, many of its aspects are applicable to all dentists. Proactive risk management in the following areas may help:
Informed Consent
While it was admirable that Dr. Alan was trying to help a colleague in a time of need, he performed a procedure without knowing if the patient was informed about the procedure’s nature, risks and alternatives and whether the patient had consented to this procedure. As the dentist performing that procedure, it was Dr. Alan’s responsibility to ensure the patient had provided his informed consent.
Dr. Alan was also working under the mistaken assumption that Dr. Pate’s office staff had appropriately processed the informed consent process paperwork. Dr. Alan should not have assumed that the methods and manners of Dr. Pate’s practice were similar to those used at his old office. Moreover, Dr. Alan erroneously and problematically assumed the staff should be left to “do the paperwork.”
Informed consent cannot be delegated to staff. Documentation of the informed consent procedure is not a paperwork issue, it is a substance issue. The paperwork or documentation merely serves as good evidence that there has been an informed consent process.
Thorough Practice Planning
In this case, Dr. Pate was remiss for not having a better backup plan in place. His staff simply continued to follow the practices they used when Dr. Pate was there. The practice did not have a plan to orient other treaters about the practice’s processes and procedures and to ensure that everything was handled to everyone’s satisfaction. Dr. Pate’s failure to have a plan in place in the event of an emergency was ill-fated and fostered an environment prone to problems.
Communication
It’s clear there were communication problems in this case. Mark did not have a relationship with Dr. Alan, and he had only limited information about the fact that Dr. Alan was filling in. The fleeting nature of the contact with Dr. Alan did not serve to promote any kind of a working relationship with him as the care provider.
Furthermore, both Dr. Alan and Dr. Pate could have drastically reduced the risk of a claim through better communication between staff and dentist, staff and patient, and dentist and patient. Dr. Alan’s view of himself as an itinerant dentist coming in, rendering care, and leaving did not promote good care and communication.
Responsibility
Even as a fill-in dentist, Dr. Alan would be required to use his own judgment about the appropriateness of a particular procedure. If he felt a procedure was contraindicated or needed to be performed by a specialist, he should not have proceeded with the treatment. The “doing what I’m told” argument rarely holds up in a court of law.
About the Author
Linda J. Hay is a partner in the Chicago office of HeplerBroom, LLC. Ms. Hay has practiced in the professional liability defense arena for more than 25 years and has tried numerous cases to verdict. She is actively involved in a variety of defense bar, professional liability and risk management organizations. Ms. Hay can be reached at Linda.Hay@heplerbroom.com.
Although this case study is based on a real case, names, dates and details have been changed to protect patient and doctor privacy.