By: Donna Domino

March 10, 2011 — The patient was insistent: All she wanted was to get her teeth whitened for an upcoming high school reunion. She came in for the $99 Internet special the dentist had run and mentioned a sore on her tongue, but she said it was recent, attributing it to a tongue-biting habit.

The dentist did the procedure but advised the patient that she needed a follow-up oral exam.

The patient eventually went to an oral surgeon who diagnosed the young mother with terminal tongue cancer. She sued the dentist who did the teeth whitening for malpractice, for missing her oral cancer.

That case, Tale of the Tainted Tongue, was dramatized at the recent Chicago Dental Society Midwinter Meeting in a session highlighting the growing number of malpractice suits over missed oral cancer screenings.

Anne Oldenburg, an attorney with Alholm, Monahan, Klauke, Hay & Oldenburg, which specializes in dental malpractice cases, participated in the mock trial. Ten years ago she didn’t have many such cases, she told But that scenario has changed dramatically in recent years, she said, noting that she is currently involved in three dental malpractice cases.

The mock trial was similar to a previous lawsuit she handled, in which a young man in his 40s died. “It was oral cancer that was clearly missed,” Oldenburg recalled. The family settled for $750,000 because the children didn’t want to go through the litigation process, but many death cases can reach $1 million policy limits, she noted.

Her colleague, Linda Hay, pointed to a tongue cancer case now garnering national headlines involving noted Chicago chef Grant Achatz, who wrote a book about his battle with tongue cancer. His surgeons wanted to surgically remove part of his tongue, but he wanted to preserve his ability to taste and opted instead to undergo radiation and chemotherapy in 2007. OCF Sadly, the treatment destroyed his ability to taste anyway, and Achatz sued his general dentist, alleging misdiagnosis. The case, which does not involve Oldenburg or Hay, will likely go to trial this year.

6-figure settlements

Publicity over actor Michael Douglas’s oropharyngeal cancer and movie critic Roger Ebert’s papillary thyroid cancer also has highlighted the growing incidence of oral cancer, especially among younger nonsmokers.

In fact, many plaintiffs who are suing their dentist for missed oral cancer diagnoses don’t fit the traditional profile, according to Hay. “It’s not the old drinker-smokers,” she noted. “We’re seeing more young people who don’t have the usual risk factors.”

Recent studies have attributed the steady increase of oral cancer to the human papillomavirus (HPV). Today, almost half of those diagnosed with the disease are younger than 50 years old — with some as young as 20, according to the Oral Cancer Foundation.

About 36,000 new cases of oral cancer are diagnosed each year in the U.S., according to the ADA, and some 25% of those people will die of the disease. Only 57% of all diagnosed oral cancer patients will be alive five years after their diagnosis, according to the Oral Cancer Foundation. Approximately 100 people in the U.S. will be diagnosed with oral cancer every day, and one person will die every hour from it.

Oldenburg attributes the growing incidence of missed diagnoses to casual patients who come in mainly for cosmetic procedures such as teeth whitening and aren’t planning on staying with the dentist.

“They’re swooping in and getting cosmetic procedures, and they’re done,” she explained. “The dentists are missing an opportunity to do detailed follow-up and comprehensive exams. Had the patient [in the mock trial] come back, the dentist would have seen it [the lesion] was still there, and he would have the opportunity to take steps.”

Most cases settle out of court, with amounts averaging six figures, Hay said. Settlements also depend on the patient’s age, their occupation, and whether they have children. The number of malpractice cases involving oral cancer has risen dramatically in the past few years, the attorneys said.

Million-dollar settlements usually occur only when the patient dies, they added.

Hay recounted a malpractice case involving a man who developed an infection that spread to his brain following an extraction. The patient, who claimed he had permanently lost a lot of brain function, sued his general dentist, the oral surgeon who did the extraction, the family doctor, and the hospital where he had been taken. The oral surgeon’s insurance company paid the approximately $500,000 settlement.

Some policies have settlement clauses that limit a dentist’s ability to litigate such cases, according to James Carney, who specializes in dental malpractice claims for Southpoint Insurance Agency and humorously portrayed a bored judge in the mock trial. For example, if an insurance company wants to settle a case for $250,000 but the dentist insists on going to trial, he would have to pay the difference if he loses in court.

“With the downturn in the economy, there’s more pressure to earn a profit, and some companies are re-evaluating how to defend such cases and how they settle claims,” Carney told

He, too, has noticed a marked increase in dental malpractice cases. “I’m seeing more and more of them — two to three claims a year, where before we didn’t see any,” Carney said. The standard policy limit is $1 million, but some carriers provide $5 million to $7 million coverage, he added.

Carney agreed with the attorneys that patients often bear some responsibility in such cases, although other factors can be relevant as well.

“You can have a patient who is complacent in following the dentist’s treatment plan,” he said. “Technology comes into play if the dentist doesn’t have the appropriate technology to detect or diagnose some of these issues.” And patients are sometimes untruthful with the dentist about symptoms, he said.

When it comes to the dollar amount of a settlement, life expectancy is a significant consideration, Carney noted.

“If the patient is a successful businessperson with three young children, you can just fill in the number you want,” he said.

Dentists can avoid malpractice suits by doing simple things, such as documentation, taking the time with a patient, and doing a thorough oral exam — “things they teach in dental school,” Carney said.

Oldenburg agreed.

“Document, document, document,” she said. “And do your oral cancer screen even if they’re only coming in for a $99 special.”