Meeting the defenses.

When trying medical malpractice cases, you face a number of obstacles. One of the most difficult is defense arguments. Often, you will encounter the same defenses repeatedly in a particular kind of case.

In this symposium, seasoned attorneys discuss the common defenses they have encountered in shoulder dystocia, breast cancer, HMO, pharmacy, nursing home, and dental nerve injury cases. The attorneys then discuss how to rebut these defenses.

Countering defendant's arguments is an uphill battle. The tips and tactics provided her may help you anticipate the common defenses in these cases. Doing so is key to a successful outcome for your client.

Responding to defenses in Erb's palsy cases

In obstetrical negligence cases, a frequent claim is that an obstetrician negligently delivered an infant, causing brachial plexus palsy, or Erb's palsy. This is a birth injury to the cervical nerve roots at C5 to C7, causing paralysis of the upper arm muscles. The brachial plexus is the nerve bundle in the armpit that innervates the upper arm. The injury is not to the brachial plexus itself but to the spinal nerve roots in the lower neck that supply it.

During a vaginal delivery, after an infant's head delivers, its anterior shoulder --the shoulder nearer to the mother's abdomen--may get stuck behind the pubic bone. This condition is called shoulder dystocia. An obstetrician can perform a variety of maneuvers to free the shoulder. None of these maneuvers requires touching the infant's head. When an obstetrician applies excessive traction laterally to the neck--pushing the head toward either shoulder--Erb's palsy may occur.

In handling an Erb's palsy case, counsel may encounter the following defenses.

* Even if the obstetrician did apply excessive lateral traction, this was an emergency. We had to get the baby out. Attempting lateral traction is never acceptable for two reasons. First, the procedure cannot free the anterior shoulder. Second, because lateral traction is the only known cause of Erb's palsy in head-first vaginal deliveries, it should never be attempted by an obstetrician.

Moreover, counsel may be able to show that the "emergency" caused by the shoulder dystocia was predictable because the fetus was macrosomic--a large fetus at least 8 pounds, 13 ounces, according to some, or at least 9 pounds, 14 ounces, according to others. The predictors of large fetuses include maternal diabetes, including gestational diabetes; maternal obesity. before pregnancy; excessive maternal weight gain during pregnancy; previous delivery of large or progressively larger infants: and post-term pregnancy.

Consequently, counsel should argue that the "emergency" should have been anticipated, permitting the obstetrician to plan the proper maneuvers to handle the shoulder dystocia and to arrange for the most experienced obstetrician available to be present during delivery. Further, if shoulder dystocia is anticipated, it can be avoided by performing a cesarean section.

* The obstetrician couldn't have known that the baby was macrosomic because the predictors were not present. During pregnancy, and especially during labor, obstetricians should always attempt to estimate fetal weight. Sonograms may help make these estimates more accurate. Often, a review of the medical records shows no attempt by the obstetrician to estimate fetal weight.

* The shoulder dystocia was not predictable because the infant was not macrosomic. Shoulder dystocia is still predictable if there is fetopelvic disproportion --disproportion between the size of the fetus and the size of the mother's pelvis. This condition is likely when there is a prolonged second stage of labor, or when the fetus fails to descend or descends at a slower-than-normal rate, or when the fetus descends normally at first but then stops descending.

Where an obstetrician does not recognize the labor's failure to progress as evidence of fetopelvic disproportion, the doctor may attempt to force the delivery of the relatively large infant with Pitocin or forceps, thereby actually causing the shoulder dystocia.

* The delivery was normal and easy. The Erb's palsy must have occurred in utero. Excessive lateral traction is the only known cause of Erb's palsy in a head-first vaginal delivery. The defense will often rely on medical articles that suggest a spontaneous or idiopathic cause.

Counsel should argue that these articles are not case reports by treating obstetricians. Rather, the articles review medical records of mothers who have had infants with Erb's palsy. If the obstetricians did not attest to shoulder dystocia or lateral traction, the articles concluded that these conditions must not have occurred. Moreover, the articles do not posit a physiological explanation as to how Erb's palsy can occur absent lateral traction.

* The obstetrician applied lateral traction but only gently. Counsel should argue that once shoulder dystocia is diagnosed, no lateral traction should be exerted since this can cause a brachial plexus injury. Moreover, counsel should point out that gentle traction cannot cause a permanent neurological injury.

* The obstetrician exerted no lateral traction and used only the proper maneuvers designed to handle shoulder dystocia. Such maneuvers, if correctly performed, do not involve touching the head and, thus, cannot cause Erb's palsy. Either the obstetrician performed a maneuver incorrectly, exerting lateral traction, or he or she applied lateral traction intentionally.

By understanding the mechanisms of injury, counsel can effectively respond to the defense's contentions and show the cause of the injury was both predictable and preventable.

Stephen H. Mackauf is a partner in the New York firm of Gair, Gair, Conason. Steigman & Mackauf.

Revealing the truth in failure to diagnose breast cancer

What are the common defenses encountered in these cases and possible responses to these defenses?

* The cancer was so aggressive that the plaintiff was "dead" when she was first examined. Emphasize that defense attorneys cannot have it both ways. They cannot argue that the plaintiff was "dead" and then remove her breast. They cannot argue that she was "dead" and then give her high-dose chemotherapy or a bone marrow transplant.

Point out that if the argument is true, the medical community not only wasted the plaintiff's money but also put her through a lot of suffering for no reason. If the argument is false, medical science would have saved her life.

* The cancer was present in the plaintiffs body for years before the defendant examined her. Argue that if this had been true, the physician missed the cancer numerous times when he examined her. Defendants often use precise mathematical arguments about the orderly growth?f cancer cells. Point out that cancers cells do not grow in a predictable, orderly fashion. The cancer could lie dormant for years and still be treatable. Argue that the physician had a duty' to treat the cancer before it became too aggressive to treat.

* Once the mammogram results came back negative, the physician was not required to do anything more. Point out that the medical literature establishes that there is some degree of false negative readings with mammography. For example, in younger women with dense breasts, the false negative rates can be as high as 10 percent.

Emphasize that the standard of care provides that the nature of the lesion must be determined within four weeks. In postmenopausal women, the standard of care may be more stringent because there is no reason to observe the effect that hormonal fluctuations have on the presumed fibrotic lesion.

Point out that when the plaintiff went to the physician, she had a lump. Argue that the physician should have performed a needle biopsy, not a mammogram. Only pathological examination can determine whether a lesion is cancerous. A biopsy can be both diagnostic and therapeutic. If the mass can be drained, it is fluid filled and nonmalignant and will disappear. If the mass is solid, the standard of care requires follow-up procedures and a definitive diagnosis.

Consider using enlarged diagrams of the needle biopsy to show the relative ease with which a skilled physician could have performed the procedure. This will help establish that the physician had an opportunity to timely diagnose the plaintiff's cancer.

* The lump shown on the mammogram was not suspicious. Display the mammogram in front of the jury. Place it on a view box and use an overhead video camera to zoom in on the questioned area. You may also want to show the jury enlarged positives of the mammogram.

Have the plaintiff's radiologist explain why the lump was suspicious and should have been investigated further by the physician. This testimony should explain answers to questions like "Was the tumor well defined with smooth borders or did it have irregular or stellate type borders?" "Did the mass appear different on previous mammograms?"

* The lump that the physician palpated and noted in the plaintiffs chart was different from the cancerous lump. Meet with a pathologist to establish, as best you can, the precise location of the lump. Often, pathologists say they cannot determine the area of the breast where the lump came from. But anatomical markers allow them to precisely define the area where the lesion was found. Often, the surgeon will mark in the patient's chart where the tissue was taken from.

Moreover, remember that during a breast examination, patients are often put in different positions by the physician. This, as well as palpation, tends to move the mass into different locations. And if the breast tissue is pendulous, the same lump may appear in different locations in the plaintiff's breast.

Further, medical literature establishes, and the defense should concede, that cancer does not necessarily grow in a concentric fashion. Consequently, one would expect to see the lesion migrate as it grows. Argue that this explains why the lump that was removed appeared to be in a different location from the lump the doctor initially examined.

Construct two models--one of the lump and one of the breast--to show jurors the volume of the lump as compared with the size of the affected breast. Argue that the lump consumed a large area of the breast, an area that included the region that the physician described in the plaintiff's medical chart. Emphasize that it is awfully coincidental that the plaintiff's cancer occurred in the same area where the doctor found the lump.

The simple truth, simply presented, will allow you to overcome common defenses in these cases.

Gary R. Hillerich practices in Louisville, Kentucky. Irwin M. Ellerin practices in Atlanta.

Refuting ERISA preemption of state law claims in HMO cases

A state law claim against a health maintenance organization (HMO) or other insurer alleging negligence of its physician members often leads to the defense that the claim is preempted because the insurance plan constitutes "an employee welfare benefit plan" under the Employee Retirement Income Security Act of 1974 (ERISA).(1) Preemption effectively eliminates personal injury suits since damages under the act are limited to the cost of medical services and attorney fees.

ERISA supersedes "any and all state laws insofar as they mat, now or hereafter relate to any employee benefit plan."(2) Federal courts caution against reading this language literally so that all state actions are preempted.(3) Courts must analyze ERISA's objectives in determining whether preemption is proper.(4)

A number of federal courts have held that suits against ERISA providers based solely on vicarious liability are not preempted since they do not relate to the plan itself.(5) On the other hand, claims of direct negligence, corporate liability, or implied contract that imply active negligence by a provider may be preempted.(6) Even if this is true, the inquiry does not end here. Trial courts must hold an evidentiary hearing to determine whether the plan actually constitutes an ERISA plan.(7)

Not every employer-provided plan constitutes an ERISA plan; that is a question of fact.(8) To fall within ERISA, an employee welfare benefit plan must be "established or maintained (1) by an employer...; or (2) by an employee organization...; or (3) by both."(9)

The law was enacted to protect employers or their employees, not insurance companies. Often, particularly with small employers, insurance is purchased from a large company that is not an employer or an employee organization.

An "entrepreneurial venture" formed to market a plan to unrelated employers that do not "participate in the day-to-day operation or administration" of the plan is not an ERISA plan.(10) Nor is a carrier or a multiple employer trust that acts for itself, rather than on its subscribing employers' behalf, and provides medical benefits without having a relationship to the company's employees.(11)

To ensure ERISA does not protect insurance carriers that do not qualify as employers under the act, the Department of Labor has established criteria to determine whether an association of employers exists. These include (1) what process the association was formed by and for what purposes; (2) whether there are preexisting relationships among the employer/ members; (3) whether employer/members were solicited; (4) what powers, rights, and privileges the employer/members have; and (5) whether employer/members control and direct the benefit plans' activities. To constitute an ERISA plan, there must be a relationship between the organization providing benefits and benefit recipients.(12)

The department issues written opinions that can help determine whether a plan meets ERISA's requirements. Often, these opinions conclude that an entity that contracts with ail employer to provide services or benefits is not an employee welfare plan under the act.(13) The mere joinder in a common employee benefit association is not enough.

A commonality of interest and participation among employees must be present. Commonality embodies a close tie among members, such as employees of a single employer or members of one labor union.(14) A plan that does not require employee members to be employees of any particular employer or members of one union does not qualify as an ERISA plan.(15)

Moreover, where an entity, such as an insurer or trust, sets up one plan servicing several unrelated employers for their unrelated employees without any concerted "sponsor" or "settlor" activity, the fact that there are identically executed subscription agreements or trust agreements does not qualify the plan as an ERISA plan.(16)

When an issue arises as to whether an HMO or insurer's plan is preempted, it is important to determine the plan's inner workings. The fact that the plan conforms with ERISA requirements, that the requisite annual reports with the IRS have been filed, or that summary and annual reports to employees of the subscribing employers have been distributed does not mean the plan is an ERISA plan.

Discovery may establish that although an HMO or an insurer had portrayed itself as providing an ERISA plan, it does not meet the act's requirements and, thus, the claim is not preempted. It is your job to uncover this charade to successfully prosecute the claim.

Notes

(1.) 29 U.S.C. [subsections] 1001-1461 (1994).

(2.) Id. [sections] 1144(a).

(3.) See, e.g., New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers ins. Co., 115 S. Ct. 1671 (1995).

(4.) Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95-102 (1983).

(5.) See Dukes v. U.S. Healthcare, Inc., 57 E3d 350, 360 (3d Cir.), cert. denied, 516 U.S. 1009 (1995).

(6.) See In re Estate of Frappier. 678 So. 2d 884, 887-88 (Fla. Dist. Ct. App. 1996).

(7.) Id. at 885.

(8.) See MDPhysicians & Assocs., Inc. v. State Bd. of Ins., 957 E2d 178 (5th Cir. 1992).

(9.) 29 U.S.C. [sections] 1003(a).

(10.) MDPhysicians, 957 E2d 178, 183.

(11.) Id. at 185-86.

(12.) ELCO Mechanical Contractors, Inc. v. Builders Supply Ass'n, 832 F. Supp. 1054, 1058 (S.D. W. Va. 1993) (citing Wisconsin Educ. Ass'n Ins. Trust v. Iowa State Bd. of Pub. Instruction, 804 F.2d 1059, 1063 (8th Cir. 1986) and MDPhysicians, 957 F.2d 178, 186).

(13.) Dep't of Labor Op. 81-62 A, 1981 ERISA LEXIS 29 (July 21, 1981).

(14.) Dep't of Labor Op. 80-74 A, 1980 ERISA LEXIS 20 (Oct. 9, 1980).

(15.) Dep't of Labor Op. 79-61 A, 1979 ERISA LEXIS 29 (Aug. 29, 1979).

(16.) Dep't of Labor Op. 79-54 A, 1979 ERISA LEXIS 37 (Aug. 3, 1979).

Theodore Babbitt is a partner in the firm of Babbitt & Johnson in West Palm Beach, Florida.

Pharmacy liability cases: dispensing justice for your client

Most pharmacists exercise reasonable care in dispensing prescriptions. Unfortunately, errors occur. The recent growth of large corporate pharmacies and the demands placed on pharmacists to increase profits have contributed to these errors.

Misfilling is the most common form of pharmacy error. Generally, it involves dispensing medication different from the one prescribed.(1) Misfilling can also occur when the wrong dosage of the proper medication is given. For example, the doctor prescribes 0.5 mg pills, but the pharmacist puts 5.0 mg pills in the container.

Mislabeling is another form of misfilling. The proper medication is dispensed but the label contains improper use instructions.(2) For example, a doctor prescribes a cough syrup/decongestant to be administered one tablespoon every 12 hours for a child, but the prescription label indicates the dosage is one tablespoon every 4 hours.

Sometimes, a patient suffers an injury even though the pharmacist dispensed the proper medication and use instructions. Pharmacists may fail to obtain needed information before dispensing medication. The patient may be taking another medication that interacts adversely with the one prescribed or may have an allergy to the medication prescribed.

To achieve a successful outcome for a patient injured by a pharmacist's negligence, plaintiff lawyers must be able to negate the defenses. The following are common ones.

* Blame the patient. Where the pharmacist dispenses medication different from the one prescribed, the container may have the pharmacist's prescription label on one side and the manufacturer's label indicating a different medication on the other side. The pharmacist may argue that the patient should have checked the label before taking the drug. Had the patient done so, the error would have been apparent. Or the pharmacist may argue that the patient had taken the drug before and should have noticed that the color or shape of the drug dispensed was different.

Do not let the pharmacist use the "obvious" nature of the error as a defense. Argue that the pharmacist has a duty to ensure that the drug prescribed is the one dispensed. Before giving medication to a patient, pharmacists must review the prescription, the medication dispensed, and the label instructions. The pharmacist, not the patient, is trained to recognize the proper medication.

Pharmacists may also blame the patient where he or she has an allergic reaction to the medication prescribed or is taking another medication that interacts adversely with the one prescribed. The pharmacist may argue that he or she dispensed the proper medication. Check whether your state's regulations require pharmacists to obtain a patient profile before dispensing medication.

This requirement recognizes that pharmacists are probably in the best position to track medications for a patient and protect against adverse reactions. The profile includes the patient's name, address, and telephone number; date of birth and gender; known or suspected allergies, illnesses, and drug reactions; and a list of all medications the patient is taking, including both prescription and over-the-counter medications.

How complete, current, and accurate the information in the profile is greatly affects the pharmacist's ability to defend a medication error. If the patient failed to provide complete information, the pharmacist is not responsible for failing to screen for potential adverse effects. But if the pharmacist failed to request necessary information, liability may exist.

Obtain a copy of the profile to see if, at the time the prescription was filled, any material information was withheld from the pharmacist. If the patient uses more than one pharmacy to fill a prescription, obtain all the profiles. Examine the questions in the profile to determine whether the proper information was requested. Also, learn all you can about the pharmacy's policy for updating or revising the profile.

In addition to various state regulations, the drug use review (DUR) provisions of the Omnibus Budget Reconciliation Act of 1990 (OBRA) require pharmacists to obtain a patient profile.(3) Pharmacists must also review the drug therapy before each prescription is filled and dispensed. This review includes screening for potential drug-drug interactions, drug-allergy interactions, and drug-disease contraindications.

Technically, OBRA applies only to outpatient dispensing for Medicaid patients. But more than 40 states have enacted similar regulations for pharmacists dispensing prescriptions to outpatients.(4) Consequently, you must determine whether your state has incorporated some of OBRA's provisions into its regulations. The act's requirements are not new for pharmacists but are a codification of the minimum standard of care they have always owed to consumers.(5)

* Blame the disease. In misfilling or mislabeling cases where the fact that the pharmacist committed error is not disputed, the defense often argues that the patient's underlying disease or condition, not the medication, caused the injury. Introduce expert testimony, peer-reviewed medical articles, and literature about the drug from the U.S. Food and Drug Administration to support the causal relationship between the patient's injury and the medication dispensed.

Pharmacists may also argue that the dosage or the duration during which the patient took the medication was insufficient to cause the injury alleged. Contact the patient's prescribing and subsequent treating doctors as soon as possible. Often, they will testify about the causative link between the medication and the injury.

* Blame the doctor. Pharmacists may blame the prescribing doctor if the patient suffers an adverse effect from medication that was exactly what the doctor prescribed. They will argue that pharmacists cannot prescribe medicine nor interfere with the doctor's treatment.

Under OBRA, if the DUR screening process reveals that a medication may cause potential adverse effects, pharmacists must (1) inform the prescribing doctor and follow his or her instructions; (2) exercise professional judgment and determine whether the medication can be dispensed despite potential adverse effects; (3) inform the patient of the problem and then dispense the prescription; or (4) refuse to dispense it and notify the physician.

Obviously, it would be difficult to hold a pharmacist liable for recognizing a potential adverse consequence, informing the prescribing physician, and only dispensing the medication on the doctor's orders.(6) Pharmacists are more subject to question for their actions when they use their own judgment, rely on the patient to assume the risk of the adverse effects, or deny the patient medication that was ordered by the physician.(7)

Learn who conducted the DUR and determined whether the medication should be dispensed. In many large corporate pharmacies, undertrained pharmacy technicians have the responsibility to respond to problems uncovered in the screening process. Pharmacists cannot delegate responsibilities for dispensing safe medication to technicians.

By understanding pharmacists' duties in filling and dispensing medication, you can overcome these defenses and achieve a successful outcome for your patient.

Notes

(1.) See generally Hoar v. Rasmussen, 286 N.W. 652 (Wis. 1932); Fultz v. Peart, 494 N.E.2d 212 (Ill. App. Ct. 1986).

(2.) See generally Peoples Serv. Drug Stores v. Somerville, 158 A. 12 (Md. 1932); Speer v. United States, 512 E Supp. 670 (N.D. Tex. 1981); Huggins v. Longs Drug Stores Cal., Inc., 862 P.2d 148 (Cal. 1993).

(3.) Pub. L. No. 101-508, 104 Stat. 1388 (1990).

(4.) AMERICAN PHARMACEUTICAL ASS'N, OBRA '90: A PRACTICAL GUIDE TO EFFECTING PHARMACEUTICAL CARE (Bruce R. Canaday ed., 1994).

(5.) Id. at ii.

(6.) See generally Pysz v. Henry's Drug Store, 457 So. 2d 561 (Fla. Dist. Ct. App. 1984).

(7.) See generally Walker v. Jack Eckerd Corp., 434 S.E.2d 63 (Ga. Ct. App. 1993); Hook's Super RX, Inc. v. McLaughlin, 642 N.E.2d 514 (Ind. 1994).

S. Craig Smith practices with Demarest, Smith, Preslar, Jones & Guinta in Dallas.

Debunking defense myths in nursing home cases

Attorneys trying nursing home cases face many challenges. Rebutting defenses is one of those challenges. This article discusses how to effectively respond to common defenses in these cases.

* Her quality of life was so poor that no real damages can be claimed. The defense will often subtly contend that because the resident was old, frail, disoriented, or inactive, his or her life was worthless. You should bring this theme out on the table for all to see. This is the time for righteous indignation. You might ask, "Is the facility suggesting that plaintiff's life was worthless because her life expectancy was short anyway?"

Point out that no one has the right to shorten a resident's life or restrict a resident's quality of life. Introduce this theme to potential jurors during voir dire and throughout the trial.

Mock jury research conducted by the author in several nursing home cases has revealed that most prospective jurors are concerned about what will become of them when they are in the resident's position. As a result, they tend to be skeptical of this defense.

In many cases, an expert who specializes in treating geriatric patients can address quality of life issues. The expert can explain, for example, that residents can and do lead meaningful lives for many years. You can also call the resident's family members to testify about the valuable role that the resident played not only in their lives but also in the lives of community members.

* She had pressure sores, but these were caused by her diabetes. The defense may argue that a resident's injury was caused by a preexisting medical condition, rather than by the nursing home's negligence. For example, the defense may contend diabetes caused a resident's pressure sores.

Where the resident has a preexisting condition, obtain all the resident's medical records for the relevant time period. You should also obtain records that go back about 10 years to get a complete medical history. For example, if the resident has diabetes, you need to know what type of diabetes and whether it was symptomatic.

Often, you will discover that the preexisting condition was successfully treated for years before the resident entered the nursing home. You may also discover that the preexisting condition may have been accelerated by the facility's failure to properly treat it.

Once you have obtained the medical records, you will need experts to address the medical issues. If the resident is diabetic, hire an expert on infectious diseases, a plastic surgeon, a geriatric physician, or other expert who can testify as to the preventable nature of pressure sores. In a case where the resident died of sepsis, have an expert study the resident's blood tests before you file the lawsuit.

In one case, the author intended to argue that the nursing home had failed to properly treat the resident's pressure sores, resulting in a fatal infection. Blood tests, however, revealed that the resident's death was caused by a urinary tract infection. These results made a difference in the way the claim was presented.

* The injury developed at the hospital, not at the nursing home. The defense may argue that other parties--a hospital, for example--were to blame for the resident's injury. To determine their potential liability, send notice letters and depose their representatives. You can then decide whether to name them in the suit.

* The resident fell, but nursing home staff can't watch every resident every minute of every day. Point out that you are not suggesting this. What you are suggesting is that the staff-to-resident ratio should afford adequate monitoring of residents to prevent injuries, as required by the Requirements for Long-Term Care Facilities, 42 C.F.R. pt. 483, and the 1987 Nursing Home Reform Act, 42 U.S.C. [sections] 1396r et seq. Emphasize to jurors that a violation of these federal standards constitutes negligence per se.

The defense may argue that violations of these federal standards did not proximately cause the resident's injury. This should not prevent you from informing jurors as to the established standards of care for nursing homes. Jurors can then decide causation.

Similarly, the nursing home may point out that the resident was combative and noncompliant. You should argue that the resident fell not bemuse he was combative but bemuse he was not properly supervised by the homes' staff, as required by federal standards.

Have your experts testify about the thought processes of nursing home residents. Usually, they don't want to be in a home. They don't want to be restrained in their beds. They don't want to be told when to eat, when to sleep, and when to go to the bathroom.

Your experts can also explain what the resident's life was like before he entered the facility. For example, if he was getting up at 5 a.m. every morning to operate a farm, it is important to point out that he is now being asked to stay in bed until 7 a.m. It is little wonder that he resists the change in his lifestyle.

You can then argue that nursing homes have a duty to create an individualized care plan for each resident under the Requirements for Long-Term Care Facilities and the Nursing Home Reform Act. This duty should include taking into account the resident's previous lifestyle and current mental state.

Even as more and more abuse of nursing home residents comes to light each year, less and less is being done to correct the abuses. By successfully countering these common defenses, you can push constructively for a higher quality of care for residents. Our relatives and friends in nursing homes deserve it. Plaintiff lawyers should demand it.

Jeff E. Rusk is a partner in the law firm of Shields & Rusk in Austin, Texas.

Drilling through the informed consent defense in dental malpractice cases

During dental procedures, dentists must be careful not to damage nerve tissue. Injury to the lingual nerve, which transmits sensation to the front two-thirds of the tongue, has been the subject of more dental malpractice claims than any other. If the lingual nerve is injured, senses of touch, temperature, pressure, and taste will be disrupted on the affected side of the tongue. The vast majority of these injuries occur in cases involving the removal of wisdom teeth.

Before any surgical dental procedure, a patient must sign a consent form. The standard form generally includes language advising patients of the possibility of "temporary or permanent complete or partial numbness of the lip, chin, tongue, gums, and teeth." In cases involving injury to the lingual nerve, the defense will often argue that the patient was informed of this potential risk in the consent form and signed it anyway.

But dentists may still be liable even though the patient signed a form that warned of a risk that then occurred. The key issue is whether the dentist's negligence caused the injury or whether it was an inherent risk of the procedure. To answer this question, you must determine the extent of the injury.

Does your client have no sensation (anesthesia) in the tongue or some sensation (paresthesia)? If a total loss of sensation occurs, the tongue will feel fat and detached from the rest of the mouth. Partial loss of sensation is experienced as a "pins and needles" or a "tingling or burning" feeling.

You must also determine whether the altered sensation is permanent or temporary. If the injury is temporary, no legal action should be taken. Note that most experts agree that by six months, and certainly by one year, any recovery of sensation is complete.

If a client describes a complete loss of sensation, permanent injury to the lingual nerve has occurred. You can argue that the probable cause of that injury is a complete severance of the nerve by the dentist's improper use of a dental instrument since the lingual nerve is not located in an area where a dental procedure should ever be performed.

Improper use of instruments may include improperly placing a surgical incision, going beyond the surgical field with a dental bur while removing bone or cutting a tooth, or inadvertently allowing an instrument to enter an area where it should not be--"slipping." Accordingly, the injury was caused by the dentist's negligence and was not an inherent risk of the procedure.

By contrast, if a client experiences a permanent, partial loss of sensation, the injury may be the result of an act that may or may not be negligent. Again, if the injury is caused by the improper use of a dental instrument, the dentist was negligent, and legal action can be taken.

Dentists, through required participation in risk management courses presented by liability carriers, are becoming more adept at using signed consent forms. Patients sign these forms, often without understanding or even reading them. Then, if an injury occurs, they are led to believe that because the injury is one of the unfortunate potential risks mentioned in the form, they cannot seek redress. To ensure that dentists do not use consent forms to escape liability for their negligence, attorneys must carefully evaluate the extent of the injury to determine whether or not the injury was an inherent risk of the procedure.

Causation remains the critical element to sustain a dental negligence claim. These cases are complex. But, with a proper understanding of the medical and legal issues, counsel can achieve a successful outcome for an injured client.

Robert W. Staley Jr. is a practicing oral surgeon and attorney in Salem and Albany, Oregon.