How to stop an implant-related lawsuit before it happens

SAN FRANCISCO - The specter of litigation can keep good dentists from adding dental implants to their treatment repertoire.

While implants can add another revenue stream to a practice, dental practitioners need to be aware of the associated risks, according to Burdick Ray, JD, an attorney in Irvine, CA, whose practice is focused on lawsuits involving dental implants.

During a presentation September 22 at the California Dental Association (CDA) fall session, Ray had plenty of advice for dentists who want to protect themselves.

For example, robust consent forms are essential, he emphasized.

"A good consent form will kill a lawsuit before it's filed," Ray said. It should completely cover the risks inherent to implant surgery, as well as the effects of post-treatment prescriptions. Infection, bleeding, sinus perforations, bone fractures, slow healing, and nonunion of the implant to the jaw, and permanent numbness should all be included as potential risk factors.

" 'Permanent' is a key word," he noted.

Potential complications associated with anesthesia also should be included.

"That includes death," Ray said. "It's purely legal, but true! It only makes sense to cover this possibility with general anesthesia."

Interestingly, not using a cone-beam CT scanner can be a possible area of exposure to lawsuits if an implant procedure goes awry.

"Failure to offer cone-beam CT in many cases may be considered substandard care," Ray said.

Cone-beam CT should be offered regardless of a patient's ability to pay, he added. If the patient turns it down, he recommends providing written informed refusal or documenting the refusal in the patient's chart.

Informed refusal is critical for the entire treatment plan, Ray stressed.

"You must explain the plan, regardless of the patient's ability to pay," he explained. "Then you can inform them of the risks of refusing treatment and list alternatives."

Having patients sign an informed refusal form or their chart adds another layer of protection, he said. Samples of these forms can be found at www.tdplt.com/consent.htm. In short, it should say, "Dr. ___ recommends this course of action." An option that states "refused to accept" with a signature line should appear at the bottom.

Having the patient sign the informed refusal form is a nondelegable task, Ray warned. The front office staff can handle financial agreements but not informed consent forms. And the forms aren't much use if they aren't filled out, he noted.

"People who get sued don't fill in their forms completely," Ray said.

Proper documentation

Ray also discussed the importance of maintaining proper documentation and how dental records can be used in a lawsuit. It may seem like common sense, but "never alter records," he said. If you need to, draw a single line through it -- to show you're not hiding anything -- write in your new notes, and sign or initial it. There's no other way to do it."

Aside from obvious ethical implications of masking notations made on medical records, it is virtually impossible to fool the specialists that examine documents, according to Ray. He outlined a host of technologies and methods that are at the disposal of document examiners.

"Forensic experts -- don't mess with them," he said.

Case studies

To drive home his advice, Ray presented two case studies. In the first, a 46-year-old patient who was a friend of the dentist had a single implant replaced on an old three-unit bridge. The dentist positioned a 16-mm Sargon implant well into the inferior alveolar nerve canal. The error was not diagnosed for 15 months.

"When the dentist took x-rays, he thought, 'I'm not in the canal' and repeated the error, based on the appearance of the x-rays," Ray explained.

The proper diagnosis was finally made after 3D imaging was used, but the implant could not be removed due to flaring. The case was settled out of court.

"Order a cone-beam CT scan, or offer one," Ray urged. "Or at a least a Panorex. And get a cone-beam CT immediately once an altered sensation is reported."

The second case involved a 57-year-old musician who did not speak English. Weeks after an extraction, a panoramic image was taken; several days later, an implant was placed. The same process was repeated on the other side of the patient's mouth, but in this instance the dentist skipped the panoramic image. In addition, he used the same implant and did not remeasure. Subsequently, the patient reported numbness.

"The negligence was in mismeasuring," Ray said. "It's the earlier drilling that usually does the damage before the implant is even placed."

The dentist made several other mistakes, he added:

• There was no witness to the signed consent form, which was not in the patient's language.
• The treatment plan was also unsigned.
• The dentist did not explain the risk of numbness to a musician whose mouth was crucial to playing an instrument that was the source of his livelihood.

While many practitioners are hesitant to get a second opinion from another doctor, getting one also can protect you, Ray noted.

"Don't let pride get in your way," he advised. "An oral surgeon is a good backup."