Dentist talking to female patient

Lingual Nerve Injury and the Value of Consent to Settle

Ginny Crandall visited Dr. Parker at the recommendation of her husband, Pete. Pete was a relatively new patient of Dr. Parker's having first visited him earlier in the year for an exam and extraction of his wisdom teeth. It had been over nine years since Ginny had been to a dentist.

In November, Ginny presented for a comprehensive exam. The doctor’s initial exam noted the patient as being “apprehensive.” Dr. Parker removed caries from tooth #4. Dr. Parker’s follow-up treatment plan was removal of the additional caries in tooth #14 and removal of teeth #1, 16, 17 and 32. The follow up visit for the caries and extractions was scheduled in two weeks. He prescribed her Valium to be taken prior to the appointment to reduce her anxiety.

The surgery took place as scheduled. Dr. Parker followed up with the patient the following day.  Ginny reported she was in a lot of pain and the left side of her tongue felt swollen. Dr. Parker called her the next day. She reported that the pain had decreased, but her tongue still felt swollen.

Ginny came into the office at Dr. Parker’s request the following day, three days post-op. She presented with limited opening. Gingival area on the lingual left side and left side of tongue showed no response to the explorer stick. He advised her the symptoms were most likely due to trauma to the lingual nerve during the extraction and sensation should return within a couple of weeks.

Ginny sought care from another general dentist who advised her to continue the prescriptions provided by Dr. Parker, noting that the sensation should return. The other dentist did not criticize Dr. Parker’s treatment but provided Ginny a referral to an oral surgeon should sensation not return. 

Three months later, Dr. Parker was contacted by the oral surgeon who advised he had performed surgery on the patient as the lingual nerve had been transected during the extraction. The oral surgeon noted that his surgery was successful, and he expected approximately an 80% chance of complete recovery within six months.

A Lawsuit Ensues

A claim for damages was subsequently filed 17 months later by the patient and her husband, alleging: 1. A breach in the standard of care for severing the lingual nerve during the third molar extraction, 2. Medical damages because of additional treatment necessary, and 3. Insufficient informed consent.

Defense counsel estimated that if the plaintiff was successful, the value of the case was in the $300,000-$600,000 range. They came to this figure because:

  • Ginny and Pete were a young couple in their early 30s and Ginny would have a life expectancy of approximately 50 more years.
  •  The potential for Pete to be awarded loss of consortium over his life and the life of their marriage.
  • At the time the claim was filed, Ginny and Pete had a 2-year-old child and another child on the way.
  • Ginny was a teacher who, at the time, was not teaching due to her young family.
  • The demand from plaintiffs was $250,000.

The Case Goes to Trial

There was no doubt the lingual nerve was severed and the patient suffered medical damages as a result. However, a few facts in favor of Dr. Parker’s treatment remained:

  1. Damage to the lingual nerve is a known complication.
  2. Dr. Parker, although a general dentist, had sufficient training in performing third molar extractions, both in school and in the military.
  3. Dr. Parker did use a consent form which noted the risk of nerve damage. He stood by his treatment and declined to consent to settle.

During trial, the plaintiff’s expert was an oral surgeon who opined that Dr. Parker should have not attempted the extraction of the impacted wisdom teeth and was “sloppy.” On the witness stand, the plaintiff’s expert appeared to the jury to be very “nit-picky” with the jury physically demonstrating frustration with his actions.

Ginny, while on the stand, became emotional which appeared to be exaggerated and fortunately, did not seem to move the jury. Plaintiff’s husband took the stand and had difficulty verbalizing any substantive affect the situation had on their marriage.

The defense expert was the oral surgeon who successfully treated the plaintiff after the nerve transection. His testimony illustrated the exaggeration of the plaintiff’s testimony and confirmed the plaintiff has no residual pain or functional impairment. His testimony also confirmed there was nothing in Dr. Parker’s treatment which was negligent or “sloppy” and confirmed that nerve damage is a known complication. 

The issue of informed consent is not required in the state where Dr. Parker practices for treatment other than when using general anesthesia. Dr. Parker did use a standard form which listed the risks, however, he admitted he did not discuss the procedure and consent with the patient but rather had his assistant handle the duty. The plaintiff had advised she had taken Valium (due to her apprehension) prior to arriving at the office and the assistant had just “put the paper in front of her and told her to sign it," without explaining the information on the form or the necessity of it.

After three days of trial, a defense verdict was received in Dr. Parker’s favor. 

What Can We Learn?

Some evidence used and helpful to the defense verdict in the case included:

  • The signed informed consent form.
  • The time-stamped credit card receipt which showed the time treatment ended. It refuted an allegation that the procedure took an exorbitant amount of time alluding that Dr. Parker was inexperienced.
  • The subsequent treater’s records which did not intimate an immediate concern, but rather advised the plaintiff to continue her medications and sensations should return.

It is important to note that every piece of information, no matter how trivial, may be of assistance when defending a claim – even credit card receipts.

Consent to settle is an important feature in the malpractice policy. It allows the carrier to negotiate a settlement within the available policy limit, if and when the carrier deems appropriate. The defense costs for this verdict were just under $95,000 and multiple days out of the office for Dr. Parker. Although the initial demand was $250,000, this amount may have either been reduced or increased after discovery. Without the consent to settle, there could have been a compulsion to settle the claim.

This case included both standard of care and informed consent allegations. Fortunately for Dr. Parker, the state in which he practices does not require informed consent for non-general anesthesia procedures. However, regardless of the requirements, using procedure specific informed consent forms is a good defensive technique. Providing the consent form during the planning stages, prior to the procedure, allows the patient time to review it at their leisure and discuss the procedure with family and prepare for it. Then, at the time of the appointment, provide another copy which is reviewed in detail by the individual performing the procedure and have that copy signed and witnessed.

Regarding the standard of care allegation, the experts for both the plaintiff and Dr. Parker were oral surgeons, although Dr. Parker is a general dentist. It is important to remember that the provider will generally be held to the standard of a specialist if there is a specialist for that procedure. 

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