Overlooking Pathology Can Result in Malpractice Claims
This article is brought to you by the AAO Insurance Company (AAOIC, a Risk Retention Group). Elizabeth Franklin, claims manager for AAOIC, prepared this article. The AAOIC provides professional liability insurance to AAO member orthodontists and is endorsed by the AAO. For more information, call 800-622-0344. Revised 12/6/2017.
A Malpractice Claim Summary
A claim was made against an orthodontist for alleged failure to note a radiolucency on a panoramic radiograph and refer the teen-aged male patient to a specialist for diagnosis.
The orthodontist had taken a panorex before beginning treatment. After two years, the braces were removed, and a retainer placed; another panorex was taken. One year later, the patient’s retainer loosened, and he revisited the orthodontist. Because the patient had gingival inflammation, he was sent to his general dentist, who requested a third panorex. When the orthodontist read this radiograph, he saw a radiolucency and immediately escorted the patient to an oral surgeon, who diagnosed a tumor in the maxillary area between the first molar and second bicuspid.
The tumor was benign, an odontogenic myxoma. The boy had extensive surgery to remove it, losing five teeth. His family sued the orthodontist alleging failure to recognize pathology on a radiograph and refer the patient appropriately. The family did not sue the general dentist.
Orthodontists are concerned with the prevention and correction of malocclusion, focusing primarily on how the teeth fit together and fit the patient’s facial bone structure. Orthodontic treatment is usually accomplished in conjunction with other dentists, especially general and pediatric dentists who provide the patient’s routine dental care. It is easy for an orthodontist to overlook signs of pathology—for example, abnormalities on panoramic radiographs—while focusing on what is important to orthodontic treatment.
Legally, however, reliance on other dental providers will not provide complete protection. Orthodontists were general dentists before specializing, and the law will hold them to that standard of care when facing a claim for damages arising from unrecognized pathology.
Factors That Determine the Standard of Care in A Claim
Orthodontists do not cause tumors. When claims such as this one are made, the issue is whether the pathology could/should have been seen. To be practicing within the standard of care, a dentist is required to use the degree of care, skill, and judgment that a reasonable dentist/specialist would exercise given the state of knowledge at the time the treatment is rendered.
The law does not require an orthodontist to diagnose, but he/she must recognize the potential for a problem and refer the patient appropriately. Examining a patient or looking at radiographs for only orthodontic-related issues is insufficient.
Hindsight vision being 20/20, review of radiographs after problems such as tumors have been discovered almost always results in recognition. Determining what a reasonable orthodontist would see without prior notice is sometimes accomplished by conducting a blind review. A number of orthodontic expert witnesses are asked to review records, including radiographs of multiple patients, with no input regarding any problems. If an abnormality is discovered on the plaintiff’s radiograph by the expert witnesses, there would be no defense that the abnormality was not visible initially.
Another element critical to defense of these claims is the determination of damages caused by a delay in referral. If oral pathologists and other specialists can establish that the damages would have been the same despite a delay in diagnosis, the plaintiff has little cause of action against the orthodontist.
There were several defenses in the above case:
- The general dentist saw no visible signs of a tumor on the bitewings he took during the orthodontic treatment period.
- The young man lost his retainer for a time. When it was found, he was still able to wear it which supported the contention the tumor was small and unrecognizable.
- The defense asserted the tumor was not present and thus not visible when the first two panoramic films were taken.
The litigation was contentious. The plaintiff was extremely sympathetic. He had myriad health problems in addition to the myxoma. Major surgery was required to excise this tumor, which resulted in significant permanent damage.
The case was tried and ended in a mistrial because the jury could not reach an agreement, which was an indication of some support for the plaintiff’s position. Despite the strength of the defenses, because outcomes of jury trials are never guaranteed and litigation is arduous, the case was eventually settled for an amount exceeding $250,000.
Avoiding “Failure to Recognize” Claims
AAOIC has handled several claims with allegations of failure to recognize abnormalities on radiographs. Every orthodontist involved was upset at the prospect of a patient’s problem developing from a potential oversight—even if the tumor was visible only in hindsight. Additionally, they all found the claim handling process to be long and painful, and in some cases the damages made the patient so sympathetic that the case resolution was unfavorable to the orthodontist.
What can you do to prevent missing indications of pathology? Keep in mind the following:
- Pay careful attention as you examine patients and scrutinize all radiographs for anything unusual;
- Consider obtaining additional opinions from your study group or other colleagues if something about a case is questionable;
- CBCT scans may have the capability of displaying information beyond the structures which the orthodontist would need for diagnosis of an orthodontic malocclusion and/or skeletal pattern. All radiographic images must be scrutinized by the orthodontist not only for the purpose of planning orthodontic treatment but also for abnormal structures and pathology. If you have not been trained to interpret the entire field of a CBCT image, it is AAOIC’s recommendation you have the images read by a qualified radiologist.
- Notice each patient’s physical details;
- Listen to patient complaints, no matter how unrelated to the orthodontic treatment, and address them;
- Refer the patient to other medical/dental specialists for another opinion if appropriate.
Careful attention to all pertinent details will keep your patients properly informed and will help keep you safe from allegations of negligence.