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Case Study: How an Orthodontist's Inadequate Documentation Led to an Expensive Malpractice Claim Settlement

Treating adults can be a significant source of business for orthodontists. Women comprise a large percentage of this business. But given the culture’s present emphasis on looking perpetually youthful, both sexes are seeking treatment at older ages.


Orthodontic treatment allows adults to address cosmetic issues and dental problems that could have long-term negative consequences, such as crossbite, or severe class III malocclusions.


For orthodontists, the primary concerns associated with treating adults are the patient's pre-existing dental condition, unreasonable expectations, emotional stability, and financial strength. If any of these factors are lacking, the treatment outcome could be compromised, and the result could be a malpractice claim. Following is an example of such a case.


A Pre-existing Periodontal Condition

A 42-year-old female patient first presented to the orthodontic office missing several teeth. She had a periodontal condition and said she'd seen her periodontist the day before she was to get braces. She also claimed the doctor had cleared her for orthodontic treatment. Her stated goal was to address her moderate to severe spacing. She wanted to fix “a gap in her front teeth.”

The woman was diagnosed with a class III occlusion on the right and class I on the left. She had cavities and moderate to severe spacing in her maxilla. The orthodontist estimated treatment time at 24 months.

The patient’s medical history noted prior periodontal treatment. The orthodontist never spoke with that doctor to confirm this treatment, and he did not have written clearance from a periodontist to begin treatment.


The Need for Retreatment

When the two-year treatment ended, the patient was given retainers to wear 12 hours per day. As time passed, she noticed that her upper diastema reopened easily, so she requested a fixed retainer. Three years after the initial treatment ended, the patient realized her diastema was returning. The retainer was closing it at night, but it was reopening each day. The orthodontist thought he could fix the problem with retreatment. Nevertheless, the woman still had inflamed gums, and retreatment ended after four months. The patient had mobility and recession on her upper teeth. The doctor gave her a Hawley retainer. Throughout retention and retreatment, the orthodontist continued to remind the patient to see her periodontist regularly; this is documented in the chart notes.


The Resulting Malpractice Claim

The patient filed a lawsuit against the orthodontist alleging exacerbated periodontal disease and the need for periodontal surgery and root canals. She also claimed to have TMJ, neuromuscular problems, difficulty smiling, pain, and mental anguish. The lawsuit was heard in one of the more liberal areas in the country, and the plaintiff was a middle-aged woman who made a sympathetic witness.

The orthodontist said the patient’s oral hygiene was satisfactory, but she would have periods of good oral hygiene followed by times when it was not good, with puffy gums and gingivitis. He testified he'd had numerous conversations with her about periodontal disease and the need for meticulous home care. In addition, the patient also missed several appointments.

The woman testified they never discussed her having a periodontal condition.


A Negative Outcome for the Orthodontist

The orthodontist’s records were poor. He could not locate initial radiographs. With no x-rays to determine the bone loss at the beginning of the first treatment, defense was difficult. There was no documentation indicating the orthodontist spoke with either the patient’s general dentist or periodontist. Therefore, the doctor should not have initiated the second phase of treatment, taking into consideration her pre-existing condition and the state of bone loss at the time. The defense attorney believed there was no chance of a good defense. The case was settled for more than $200,000.

What are the problems that occurred with this case? What can you do to protect yourself? We will examine ways to manage your risk further in the next quarterly newsletter.