Articles Posted in Dental Malpractice

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.

As a lawyer in Atlanta, Georgia who specializes in Dental Malpractice Injuries, I receive lots of calls from Georgia patients who have been severely injured by Atlanta dentists. The calls are many, and at the outset, I must point out, that not every injury in the dental chair is caused by dental malpractice. In other words, some people are injured as a the result of a dental procedures and the injury is something that can happen absent malpractice. It is part of my job, as a lawyer evaluating dental injuries, to identify those types of injuries (dental injuries that occur through no fault of the dentist) and eliminate those cases from consideration. After all, it is the goal of every good lawyer to steadfastly pursue the good cases to trial (if that’s what it takes) and not expend valuable resources and time (from the lawyer, law firm, and potential client who is dragged into litigation when ultimately the case has no merit) on a case that falters due to a lack of provable malpractice.

One such injury that is almost always caused by dental malpractice is something called trigeminal neuralgia (TN), which is sometimes known as “the suicide disease.” It is brought on when the brain’s trigeminal nerve, which carries sensation from the brain to the face, is disrupted, sending unfounded but very powerful pain signals to the brain. The trigeminal nerve breaks off into the lingual nerve and the inferior alveolar nerve and these two nerves are involved in the majority of dental nerve injury trigeminal nerve injuries. Typical dental procedures that cause these types of injuries from malpractice are dental implants placed in the lower jaw, root canals of lower molars and extractions of lower back molars.

Researchers estimate that around five in 100,000 people suffer from trigeminal neuralgia, but it is notoriously difficult to diagnose since the symptoms can overlap with other conditions and accurately describing the pain can be challenging for patients.  One woman suffering from trigeminal neuralgia said that the pain might come on while she brushed her teeth, or sometimes, after a gentle gust of wind blew on her cheek. The result was something like an “electric shock,” she said, with no obvious cause. It later evolved into a “constant and excruciating” sensation. When asked by doctors to rate the pain from one to 10, she said it was a 13. “I was thinking, ‘Was I imagining this pain? Where did it come from? Why is it here?'” This is all quite typical of many of my clients who have suffered this injury at the hands of a negligent dentist or oral surgeon.

Early childhood cavities (ECC) is the single most common chronic childhood dental disease. In the treatment of ECC, children are often sedated under general anesthesia. An estimated 100 000 to 250 000 pediatric dental sedations are performed annually in the United States. Many of these procedures are not necessary and are performed by “suspect” children’s dental clinics under the auspices of treating the caries aggressively to stay ahead of the game. As we see below, most times, it is not worth the risk of general anesthesia complications to perform restorative work on a child’s baby teeth.

In 2016, the American Academy of Pediatric Dentistry (AAPD)¹ announced, “Because restorative care to manage ECC often requires the use of sedation and general anesthesia with its associated high costs and possible health risks, and because there is a high recurrence of lesions following the procedures, there now is more emphasis on prevention and arrestment of the disease processes.” The AAPD’s policy statement goes on to enumerate methods of chronic disease management, active surveillance, and interim therapeutic restorations and states, “Non-surgical interventions should be implemented when possible to postpone or reduce the need for [previously accepted] surgical treatment approaches.”

A common rationale for aggressive surgical treatment with sedation or general anesthesia has been the vastly overstated association between tooth decay in primary teeth and subsequent decay in permanent teeth. In fact, this connection is modest, with the relative risk ratios ranging from 1.4 to 2.6.^2,3 One reason the association it not strong is that the shedding of decayed primary teeth eliminates sites for bacterial colonization in the mouth and thus reduces risk of caries in the permanent dentition. The loss of primary teeth with replacement by permanent teeth is a normal developmental process that requires no professional intervention.