Intro: On Air With OMSNIC is a podcast intended to provide information only on certain risk management topics, and is not to be construed as providing legal, medical or professional advice of any form whatsoever. Because federal state and local laws vary by location, nothing in this podcast is intended to serve as legal advice or to establish any standard of care. Legal advice, if desired, should be sought from competent counsel in your state.

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Bill Klaproth (Host): Hello and welcome to On Air with OMSNIC, a podcast brought to you by OMSNIC, the leading medical professional liability insurance company owned by OMS that exclusively insures OMS. I'm your host, Bill Klaproth. 

In today's episode of Claim Chronicles, our closed claim review series, we will discuss two dental implant claims. First, I'll tell you the story of the claims, and then I'll chat with Becky Hanafin, part of OMSNIC's Patient Safety and Risk Management Department to review some specific risk mitigation strategies. Let's get started.

Our first closed claim summary today involves a 61-year old female patient that presented for the placement of four implants at tooth numbers 4, 7, 10, and 13. The patient's history was unremarkable. The treatment plan was documented and patient education provided. Informed consent was obtained, and the procedure was uneventful.

Approximately three weeks post-op, the patient reported sinus problems and nosebleeds. Upon examination, the insured noted all four implants failed. And the insured obtained a CT scan that noted that the number 4 implant had extended into the floor of the maxillary sinus. The patient returned for several post-op follow-up appointments, but eventually stopped returning to the practice. No follow-up communication efforts were documented.

A year later, the insured received a notice of intent to file a lawsuit from an attorney representing the patient. The patient alleged the doctor failed to discuss the treatment plan, failed to inform the patient of the need for bone grafting, and improperly placed the implants, resulting in abnormal sinus conditions, perforation and eventual implant failure.

The insured who had retired months prior discovered that certain records from the patient's chart were missing. While some electronic elements of the chart could be obtained, the paper parts of the chart including the informed consent form, written treatment plan, op report, and progress notes were missing. The insured notified assigned defense counsel that he had placed records in storage upon his recent retirement and could not locate these elements of the patient's chart. Without the complete chart to provide evidence and documentation of the treatment planning, informed consent discussion, details of the implant placement and progress notes, the defense team faced significant challenges.

With this in mind, the defense counsel recommended to the insured that the claim be settled before the suit was filed. The insured agreed with defense counsel's recommendation to settle the case early in the litigation process because of the missing records. If the plaintiff attorney proceeded with filing the lawsuit, there was an increased risk of facing additional allegations of record spoilation.

Now, let's welcome Becky Hanafin to the conversation. What can we learn from this claim?

Becky Hanafin: Hi, Bill. Thanks for having me. When we evaluate this claim, the first point to remember is that implants can fail even in the absence of negligence. Sinus issues are also a known risk when placing maxillary implants. 

Host: Those are important considerations. That's where risk mitigation strategies come in, right?

Becky Hanafin: That's right, Bill. For instance, the insured took images and documented the treatment plan. They made efforts to educate the patient about the implants and noted that informed consent was obtained. This type of documentation helps to refute the patient's allegations that the doctor failed to discuss the treatment plan with the patient, and that the patient was not informed about the procedure details.

Host: I can see how that would be helpful. But in this case, the doctor was not able to provide a full copy of the patient's records, which impacted the outcome of the case. How do you mitigate that?

Becky Hanafin: It's really difficult, Bill. In this claim, portions of the record could not be located by the insured. This is a less common occurrence than records that simply do not comprehensively reflect the care and treatment that was rendered to the patient. But regardless of why the information is missing, without the complete chart to provide evidence and documentation of the treatment planning, informed consent discussion, patient education, details of the implant placement, and progress notes, we were unable to demonstrate the insured's efforts to manage these post-op complications.

Host: So, how can doctors help to ensure this information is available?

Becky Hanafin: We always recommend that doctors and their staff document all patient interactions and communications in the chart contemporaneously. This memorializes these efforts, which improves care coordination as well as helps to refute allegations should a patient make them later. Given the misplaced records in this case, this claim is also a good reminder that it is each provider's responsibility to safeguard and maintain a patient's record according to their state's defined record retention policies. We encourage doctors to carefully consider the process and take necessary steps to preserve and maintain charts when they are transitioned out of the office for any reason, whether it's due to retirement or the sale of a practice.

Our Guardian article from June 2024, which can be found on our website, shares some specific tips concerning practice transitions. If the practice has a hybrid charting system like an EMR and paper charting together, we recommend that you keep a copy of the complete chart altogether. When storing a record, maintain a log of each chart's contents and location in order to easily locate the records when needed. Our online course, “Documentation is Your Ally”, offers more information on documentation best practices as well.

Host: That all makes sense, but things do happen, right? So, what should doctors do if they realize information is missing?

Becky Hanafin: If records are discovered missing, document the day this was discovered, the efforts that were made to locate the records. And then give us a call, so additional guidance can be offered.

Host: Thank you for that insight, Becky. Those are really important considerations. Let's move on to our next closed claim summary.

Our second claim today focuses on a 44-year-old woman who presented to the insured with a complaint of pain on the lower left side. The patient had a root canal on tooth number 19 ten years prior. And the insured documented that number 19 was fractured with a periapical lesion.

The doctor recommended extraction and grafting with reevaluation for an implant after bony healing. The extraction of tooth number 19 and bone grafting was performed without incident. And the patient returned to the insured about three months later for assessment. The insured documented that there was sufficient bone height remaining in the number 19 site to place an implant.

At this time, the provider documented a conversation with the patient about the implant procedure and the potential risk of nerve injury, as well as demonstrated the location of the inferior alveolar canal by drawing on the pano. The patient signed a detailed implant informed consent form, which also noted the risk of permanent nerve injury.

Two weeks later, the patient returned for implant placement. And the provider, utilizing a guide stent, placed a 5 by 13 millimeter implant in the site of tooth number 19. The patient returned one week later for a scheduled post-op evaluation and reported left side numbness of her lower lip, chin, and gingiva. The insured documented the patient's symptoms, took a panoramic image, and recommended that the implant be replaced with a shorter implant. The patient agreed, and the number 19 implant was replaced with a 6 by 10 millimeter implant the same day.

The patient returned two weeks later with continued complaints of left-sided numbness. And the insured referred the patient to an OMS micro neurosurgeon for further evaluation. This micro neurosurgeon determined that there had been a compression injury to the IAN, which may have been caused by swelling, blood clot, or by the implant itself.

The patient underwent microsurgical repair, which was ultimately unsuccessful and filed a lawsuit against the insured. Plaintiff experts alleged that the insured was negligent in not utilizing a CBCT to determine more precisely the available bone height prior to implant placement. Defense experts, however, noted that nerve injury is a known risk of implant placement that the patient was aware of these risks as evidenced by the documented informed consent conversation. And the utilization of a CBCT is not the standard of care as it relates to implant planning.

Defense experts also noted that the insured attempted to relieve the patient's symptoms by replacing the implant with a shorter one. And when the patient's symptoms did not immediately improve, the insured appropriately referred the patient to an OMS micro neurosurgeon for evaluation and repair. The claims committee and defense counsel recommended a defense posture. The case went to trial resulting in a defense verdict for the insured.

Welcome back, Becky. This claim had a different outcome than our first. What would you highlight as the strengths here?

Becky Hanafin: This doctor did a great job thoroughly documenting the patient's care. Once a claim is made, our claims committee and defense counsel looked to the records in hindsight to determine what occurred. In this case, from the notes, we were able to support the doctor's efforts with the informed consent process, post-op care management, And the timely referral to the micro neurosurgeon. Comprehensive documentation like this memorializes the story of the patient's care so that we can point to these efforts when refuting allegations.

Host: Is there anything else that you think helped obtain a defense verdict?

Becky Hanafin: The doctor's drawing on the pano is a great way to help educate the patient about potential nerve injury. But it can also be used later to demonstrate to a jury that the doctor used this visual to educate their patient about anatomy and the intricacies of their mouth as it relates to the treatment being proposed.

Host: Are there any other patient education strategies you recommend your insureds use during implant cases?

Becky Hanafin: We mentioned in the last claim that sometimes implants fail in the absence of negligence. Similarly, we know that nerve disturbances are a risk of implant placement. In the event patients present with postoperative complaints, we offer several resources to help document the management of these patients. We offer a patient education document called “Care and Treatment of a Sensory Nerve Disturbance” that helps patients understand what a nerve disturbance is and, if one does occur, what to expect in their post-op care. This is helpful proactive education that can be shared with the patient prior to the procedure, especially in patients where the insured believes there is an increased risk of nerve disturbance.

Then, if there are post-op complications, we offer a neurosensory self-assessment form that allows patients to report and track their own progress as it relates to neurosensory deficits. This can be especially useful if the patient self-report symptoms and then later claim something different.

For our doctors, we have a neurosensory exam form to document both subjective and objective details for the initial and any subsequent follow-up exams. I have seen firsthand in our claims review process where this documentation has supported our defense strategy. These resources can be downloaded from our website in the Informed Consent and Document section once you log in. These resources offer an easy-to-follow structure and can help doctors be consistent within their conversations about nerve disturbances.

Host: Those resources sound great, and I hope our listeners take your advice to look at them on the website and incorporate them into their practice. And that brings us to the Risk Recap, the lessons from today's cases you can take straight back to your practice.

Regarding imaging, plaintiff attorneys may argue that CBCT is the standard of care for implant planning, but it is the doctor's clinical judgment that determines what imaging is needed to move forward safely. Imaging protocols within your practice can help with consistent care and documentation of treatment, but it is ultimately up to the doctor to make those decisions for each patient.

Regarding patient education, today's second case showed us a simple yet effective patient education strategy. Drawing on the inferior alveolar canal on a panoramic image during the informed consent conversation didn't just help the patient understand the risk, it helped a jury understand what the doctor did and why.

Regarding documentation, when claims are made, sometimes years after treatment, you will not remember the details of the conversations, your decisions, or that follow-up call, but your chart will. Document your clinical reasoning, not just your clinical actions to memorialize this information in the patient record. The strategies and resources we've discussed today exist to support patient safety and, when the time comes, to support your defense.

Becky Hanafin: Thanks, Bill. In closing, I'd like to remind our doctors of other resources they may find helpful. Be sure to check your inbox each month for The Guardian, our digital newsletter. We alternate between closed claim summaries and informational articles about trending topics influencing your practice. Earn CE and premium credit when you complete our on-demand courses on our website. Choose from one-hour, three-hour, and short bite-sized courses. Or if you'd prefer in-person educational opportunities, check out the events calendar on our website.

Host: That's great, Becky. And thank you for sharing these important insights and resources to help our listeners with patient safety and risk management. Thank you for listening to today's episode, and be sure to check out our other podcast episodes, including more Claim Chronicles.

Outro: Not familiar with OMSNIC yet? OMSNIC offers unmatched protection and defense exclusively for OMS. Visit our website, omsnic.com, to learn more. Policyholders have access to exclusive, complimentary risk management resources, such as informed consent forms, videos, and on-demand CE courses.