Articles Posted in Dental Malpractice

It’s all the rage these days. Clients are asking dentists to pull all of their teeth and install all-on-four dentures. Sometimes called teeth in a day or full mouth implants, these procedures are sometimes performed in the same day. While the billboard advertisements tout shiny smiles and happy patients, this may not always be the case.

All-on-four implants are offered by individual dentists and small dental practice groups. But, the vast majority of these procedures are performed by large dental chains. Some of the large dental chains that offer this type of procedure are ClearChoice, Affordable Dentures, Aspen Dental, Coast Dental, First Dent, DentChoice. This list is certainly not exhaustive and all-on-four dental implant procedures are performed by anyone from a general dentist, periodontist, prosthodontist, all the way up to an oral surgeon.

While the vast majority of these procedures are performed adequately, some complications due to dental malpractice can arise. These procedures require a great deal of expertise, proper planning and implementation, very precise radiographic tests such as the use of a Cone Beam CT Scan (CBCT) and a great deal of skill on the part of the dentist. Lack of proper planning, improper measurements, drilling to deeply when prepare the site for the implant and installing the implants too deeply into the jaw line or just some of the potential problems that can occur when these procedures are not performed correctly. This can happen when the dentist is not properly trained in the procedure, is careless, or lacks the skills to adequately plan and perform the procedure with the applicable standard of care.

The primary goal of root canal treatment is to eliminate and prevent re-infection of the root canal system anatomy. In necrotic teeth, microorganisms can colonize anatomical complexities, such as isthmuses, ramifications and dentinal tubules and this causes infection and abcesses that are partially the reason why a root canal is performed. Instrumentation (dental files) can reduce the bacterial load by approximately 80%. However, the microorganisms cannot be completely eliminated with dental files alone as the file are very small but not small enought to get into every crevice of the roots of the tooth. sometime, in order to try and achieve this or simply due to inexperience or a lack of skill or knowledge, dentists over-instrument the canals, which is below the standard of care and often leads to catastrophic nerve injury.

After the canals are obturated (or cleaned out) the endodontist (or the general dentist if the patient has not been referred out to a root canal specialist: for the rest of this article we will refer to the practitioner performing the root canal as the “dentist” as both general dentists and endodontists are dentists) places sodium hypochlorite (NaOCl) solution into the canals to clean and disinfect them. This is a strong solution which, due to its antimicrobial/antibiofilm activity, and organic tissue dissolution capacity is able to clean and disinfect the canals. It is placed into the canal by the dentist using a needle coupled to a syringe, a system known as conventional syringe irrigation (CSI). CSI has a rinsing effect, which is an important part of the irrigation process. Once again, due to inexperience, a lack of skill, or nelgigence, too much apical pressure by the dentist can lead to sodium hypochlorite extrusion outside of the tooth roots and, many times, into the dental nerve which lays just beyond the apex of the tooth being treated (if the tooth is a bottom molar).

The news is shocking. A 4 year-old boy went to the dentist for what appears to be a fairly routine procedure and winds up dying. Obviously, his family and their lawyer want answers. This appears to be a senseless death and  a lawsuit will be filed shortly, according to the malpractice attorney representing the deceased child and his family.

As an experienced dental malpractice attorney in Georgia, I am at a loss to explain this tragic result. While I do not have any information or reason to believe that these types of actions were involved in the above tragedy,  I receive many calls from parents who complain that they are strong-armed into getting, what they later consider to be unnecessary dental treatment on their very young children. Often, they relay to me after the fact that they took their baby to a dentist ‘s office that specializes in children’s dentistry and are told that their child needs multiple fillings on baby teeth, that the child must be put under anesthesia to perform the fillings, AND that the procedure has already been started. Every parents worst nightmare. This is an atrocity that should not be tolerated, yet this is apparently standard operating procedure at some pediatric dental offices that specialize in children’s dental care and who prey on the poor and uninformed. To be sure, this is not done at every office, and some children’s dental offices practice in an ethical and professional manner, but, once again, others do not.

According to a preliminary report from the medical and dental records the child may have had inadequate oxygen during a dental procedure and, in turn, the lack of oxygen caused an irregular heart rhythm which led to no pulse. The pediatric dental office that was providing the dental care to the child performed CPR until EMT’s arrived and the child was transported to the hospital where he died later that evening. While this certainly addresses the immediate causes of death, other inquiries should be: (1) what was the overall health of the child; (2) did he actually need the procedures that were performed on him on the day that he died. Considering that these were baby teeth, was it really required that he have major dental procedure at this age?; (3) did the procedure in question, if they were medically necessary, require general anesthesia or could local anesthesia have been used?; (4) what protocols were in place at the dental office to make sure the proper anesthesia was used, the proper monitoring during anesthesia was performed and what was to be done if complications, such as those that occurred in this case, were encountered and were they followed in this case?.

As a dental malpractice attorney in Atlanta, I see many types of claims for damages resulting from dental malpractice. Sometimes, the injury sustained due to the malpractice is discreet and not ongoing, but still debilitating. Other times, the injury is ongoing, permanent and renders the client unable to perform her normal duties at work. Still others are more unique, in that the client has a special talent of career which is impacted by a dental injury (such as a dental nerve injury that affects the ability to use the tongue or lips) and this ruins a promising career or talent. As an example, a musician who must use her mouth to play her instrument can purse claims for the loss of her career following an allegedly botched procedure by a dentist. This is the situation in a closely followed case that is just entering litigation. The musician, who has performed in orchestras in areas outside of Atlanta, claims in her lawsuit that her face could prematurely age because of irreversible bone loss as a result of negligent work performed by the defendant dentist. According to the suit, in an attempt to avoid jaw surgery after lifelong dental and breathing problems, the plaintiff sought an alternative. The dentist defendant, treated her unsuccessfully for years before placing an anterior growth device and controlled arch braces, in the musician’s mouth.

According to the plaintiff’s account, the device was supposed to be a substitute for jaw surgery by stimulating new bone growth, helping to move teeth and the the jaw forward and improve her airway. Instead, the plaintiff claims in pleadings that the device worsened the condition and that the use of the device was below the standard of care of what a reasonably prudent dentist would do under like or similar circumstances (what is known as the standard of care in Georgia) because it is unproven and not supported by medical knowledge or science. Due to the alleged malpractice, the plaintiff fears that she could lose four to six front teeth, and, over time vertical height in her front jaw leading to the early aging of her face.

The above is an interesting example of the what the law calls an “egg shell plaintiff.” In other words, if one commits dental malpractice and, due to some unique factors that apply only to the injured plaintiff, the damages are exponentially increased (such as the loss of a music career due to a dental injury), the defendant is liable for all of those damages so long as the remaining elements of the claim are proven by the Plaintiff. Another example would be a professional athlete who can no longer play professional sports due to an injury sustained from dental malpractice. As is true with every case, even with damages, the plaintiff must prove duty, breach and causation to prevail in a dental malpractice claim in Georgia.

In Georgia, when a patients suspects that they are the victim of dental malpractice and request their file, the dentist must give the patient a complete copy of their file, including all radiographic materials such as x-rays and cone beam CT scans. As a Georgia lawyer who regularly handles dental malpractice cases, I receive calls from irate patients who have properly requested a copy of their file but are being stonewalled by the dentist. In most cases, the dentist feels safe in refusing to provide the patient file, and in doing so, feels as if this will convince the injured patient to not seek legal action. Rarely does this work and, in more cases than not, it spurs the injured patient to hire an experienced dental malpractice lawyer to obtain a copy of the file, evaluate the case, and file a lawsuit if the case has merit.

When a dentist refuses to give the patient a copy of her records after they have been properly requested pursuant to statute and appropriate notice to the dentist via certified mail, the statute of limitations (or the amount of time within which the injured patient must file a lawsuit) could be tolled for the period of time during which the dentist refuses to comply with the statutory request for the records. See O.C.G.A. Section 9-3-97.1. 

O.C.G.A. Section 31-33-2 provides, in pertinent part:

As a lawyer in Atlanta who handles dental malpractice on a regular basis, I can gauge by the number of potential new clients the amount of dental procedures that take place in Atlanta. Since we only handle new cases that involve injuries caused by a dental procedure, and the number of dental procedures performed in Atlanta was down to almost zero in April and May of 2020, we have seen the number of dental malpractice calls go down by almost 75% in April and 90% in May. Although the numbers are not in yet for June, as of this writing, I imagine the calls related to new dental malpractice claims are down by about 90%.

While dentist offices tend to be stable businesses that do not fluctuate much in the number of procedures performed, dentists have been especially hard hit by the corona virus pandemic.  For the most part, any dental procedures that are not emergencies have been put off. This includes cavities, cleanings and a whole host of other dental procedures.

Many clients are getting dental implants in the upper jaw. The sinuses are located right above your upper teeth, which poses a potential problem when pulling teeth and installing dental implants such as sinus perforation when having one of your upper teeth extracted?

The anatomy of the sinus floor and its relationship to the upper teeth varies from person to person. In some people, the sinus floor is well above the roots of their teeth with bone separating the roots from the sinuses. While in other people the floor follows the roots more closely. In essence, wrapping around the roots with minimal bone between the sinus and tip of the roots. Still others actually have the roots of the teeth up into the sinus, which seems to work fine, so long as they are not disturbed (i.e., extracted forcefully). For those whose sinuses are very close to or even touching their tooth roots, there is a risk that the sinuses will be perforated when their tooth is extracted. This risk is greater if the tooth being extracted is infected or has an abscess at the tip of the root. This situation calls for extreme caution and if the dentist does not comply with the standard of care, a communication between the mouth and sinus can occur and this is often a very serious complication which could have been avoided which can take months and even years to resolve. 

When considering an extraction of an upper tooth, if  x-rays show that the tooth’s roots are near the sinus floor or actually in the sinus cavity; or if there is an infection or abscess, the dentist should take a cone beam CT scan (“CBCT”) of that area prior to extracting the teeth and certainly before placing the implant in that area.  A CBCT can assess the proximity of the roots to the sinus or assess the degree of existing defects that may lead to a sinus perforation following an extraction. Since CT scans are imperative in planning and placing implants, it is considered below the standard of care for dentists to not perform a CBCT before extraction and implant in this area. In fact, due to the complicated anatomy, it may be necessary to perform a pre-extraction CBCT and a pre-implant CBCT. This is so because the extraction may cause significant changes to the bone structure that would affect the available bone in which to place the implant. If there is enough bone height, the implant will fail, or worse, the implant will be screwed into the sinus where it will invariably lead to communication between the mouth and sinus and repeated infections. Sinus perforations, if not diagnosed and left untreated, can persist, leading to an oral-antral fistula—an opening between the sinus and the mouth. Oral-antral fistulas can result in sinus infections as well as fluid drainage from the mouth to the nose. They can also lead to drinks being leaked into the sinus, whistling noises when breathing, and a whole host of unpleasant problems caused by the opening between the mouth and sinus.  It is important to manage sinus perforation at the time it occurs to prevent it from progressing to a chronic oral-antral fistula. Proper care and treatment after a communication is caused often requires that an oral surgeon consult with an ENT and/or the two of them working together to resolve the issue.