I am not the type of person who runs to file a lawsuit. In fact, I didn’t even think of it after recovering from surgery from oral cancer. A relative who is a lawyer came to visit me after surgery and said, “Something is terribly wrong here. A healthy young woman…and now you look like Frankenstein.” He insisted I have a photographer take photos of my surgical sites. I told him I didn’t want to remember what I looked like. But, he arranged for a photographer because he thought one day, I may need those photos. He was right.
After barely making it through the radiation, this relative suggested I have a potential lawsuit. I was warned that a lawsuit is emotionally and physically draining and can drag on for months, even years. After regaining my voice, I started to think. I was given a 15% chance of survival. There was a decent chance I wasn’t going to be around to raise my two young children. If I were to win a lawsuit, I would create a college education fund for them. At least if I couldn’t educate them as a mother would, I would hope a good school along with family and friends could replace some of that important knowledge. However, an even stronger motivation to pursue a lawsuit would be to make a strong statement to my dental professionals about preventing the same kind of treatment to happen to another patient. Also, the exposure could educate the community. If even one person read the article and it saved a life, all the aggravation of a lawsuit would make it worth it.
I started the process, and kept questioning whether I wanted to drag my family through the heartache of a lawsuit. But, the determining factor to continue, was this: After I was diagnosed, and my husband called both the oral surgeons and dentists that I was diagnosed at stage IV, I NEVER HEARD FROM THEM AGAIN. I was a patient and yet, they didn’t have the compassion to call, send a note, or show any concern. This admitted more guilt than acting humanely. Yes I realize their lawyers probably told them ‘don’t admit guilt.’ But should that stop a person from treating another person with compassion?
During the lawsuit, it was uncovered that my dentists altered the notes. That is harder to do these days with digital charting. We settled. My oral surgeons based a treatment plan for me on a biopsy that was 2 years old. They never questioned the biopsy (which happened to have been misread). That is negligence, plain and simple. We settled. The court case went through to final statements with the pathologist who read my biopsy as hyperkeratosis instead of moderate dysplasia. After close to a year, we settled with enough money to put one child through a private college. Was it worth the heartache, tears, frustration, anger….not only to me, but to my husband and all the people dragged into the case for questioning? I would answer, barely. I think my case, the lawyers representing the dental professionals were particularly grueling.
If you are a dental professional and have not seen the page on this website about protecting yourself legally, click here. In short, if a dental professional provides an oral cancer screening and it all looked good, they would note in the charts, ‘WNL’ or ‘within normal limits.’ However, no longer will WNL protect you in a court of law. Now, it should read that an ‘intra and extra oral exam’ was performed.
Here is a summary of a Oral Cancer litigation from 2006 published on the Oral Cancer Foundation website. It describes a case of negligence followed by suggestions for dental professionals when sending tissue for a biopsy:
- Call the laboratory to ensure receipt of the biopsy. Document the call.
- Determine when you can expect results, and note the day.
- Follow up with the laboratory if you do not receive the results on the agreed upon day.
- Set an appointment to take another biopsy if something goes awry with the first biopsy. Consider not charging for the second biopsy.
- Call the patient when you get the biopsy results. Document the details of the call. If appropriate, refer to a specialist and follow up to ensure the patient went to the specialist, and document those efforts.
- Obtain a second opinion when pathology reports are inconclusive.
If you are a survivor of oral cancer and questioning whether you should pursue a lawsuit, think about it the emotional toll it will take and balance that thought with the lesson it will provide to the doctors and the community. I didn’t have any outward disfiguration, so it was harder for a jury to look at me and think I was due monetary damages. That hurt my case. It isn’t easy to understand the internal damage of a late diagnosis for oral cancer: the potentially disfiguring surgery, the barbaric mask for radiation and the loss of oral health years after treatment.
Once the dental complications begin to arise due to the late-term effects of radiation, having extra money to pay for all the dental bills could be a real benefit.