Failure to Diagnose and Delayed Diagnosis of

Cancer: Medicolegal Issues

Joel B. Epstein, James J. Sciubba, Tammera E.
Banasek and Linda J. Hay
J Am Dent Assoc 2009;140;1494-1503

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Medicolegal issues
Joel B. Epstein, DMD, MSD, FRCD(C); James J. Sciubba, DMD, PhD; Tammera E. Banasek, JD;
Linda J. Hay, JD

stablishing a diagnosis
requires that a series of
events occurs in an appropriate sequence. This
sequence is affected by the
presence or absence of classic signs
and symptoms, development of an
index of suspicion for unexplained
or unusual findings, appropriate
and accurate diagnostic testing, and
proper treatment and follow-up or
referral. Each step is fraught with
variability, requiring more than a
simple analysis; failure to conduct a
thorough analysis may lead to a
misdiagnosis or delayed diagnosis.
In oncology, such critical outcomes
may result in the need for more
aggressive treatment with increased
morbidity, increased costs and an
increased risk of dying of disease.
In patients with head and neck
cancer (HNC) and oral squamous
cell carcinoma (OSCC), delays in
diagnosis of more than one month
may contribute to an increased
chance of diagnosis of later-stage

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ABSTRACT
Background. Failure to diagnose and delayed diagnosis of cancer can
have a significant effect on patients morbidity and mortality. Oral health
care professionals should be alert for oral premalignant and malignant
disease and head and neck involvement by malignant disease. These
issues have patient care and medicolegal implications.
Case Descriptions. To provide guidance to practitioners, the
authors present a series of cases of oral and head and neck cancer that
resulted in legal action. They chose the medicolegal cases to highlight
dental professionals potential legal liability and provide guidance in
patient care.
Clinical Implications. Clinicians need to obtain complete comprehensive histories, perform thorough head and neck and oral examinations and appreciate the importance of being vigilant for abnormalities
that may lead to early detection of potentially malignant disease.
Key Words. Oral cancer detection; oral cancer diagnosis; malpractice;
risk management.
JADA 2009;140(12):1494-1503.
Dr. Epstein is a professor, Department of Oral Medicine and Diagnostic Sciences, College of Dentistry,
and Department of Otolaryngology and Head and Neck Surgery, College of Medicine and Cancer Center,
University of Illinois at Chicago, 801 S. Paulina St., Room 556 (M/C 838), Chicago, Ill. 60612-7213,
e-mail jepstein@uic.edu. Address reprint requests to Dr. Epstein.
Dr. Sciubba is a retired professor, The Johns Hopkins School of Medicine, Baltimore, and is a consultant
at The Milton J. Dance Head & Neck Cancer Center, Greater Baltimore Medical Center.
Ms. Banasek is an associate at Alholm, Monahan, Klauke, Hay and Oldenburg LLC, a law firm in Chicago.
Ms. Hay is an owner of Alholm, Monahan, Klauke, Hay and Oldenburg LLC, a law firm in Chicago.

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Failure to diagnose and delayed diagnosis

of cancer

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with a minimal impact on receipt of periodic oral

cancer examinations.
Dentists may identify HNC at an earlier stage
than do physicians. A survey of 51 new patients
with OSCC showed that detection by dental care
providers during a routine examination was associated with a less advanced stage of cancer at
diagnosis.11 In response to a survey question, 1,014
patients reported that 72.5 percent of dentists recognized early symptoms of HNC compared with
40.1 percent of physicians.12 The responses to a
mail survey of general medical and dental care
providers showed that 58 percent of dentists routinely examined patients for signs of oral cancer,
while physicians examined the mouth in response
to patients oral complaints.13 Only 15 percent of
medical care providers reported feeling confident
in their ability to detect oral premalignant or
malignant lesions; this compares with 37 percent
of dentists who reported feeling confident.13
Patton and colleagues14 conducted a survey of
medical and dental care providers in North Carolina regarding the adequacy of training received
in the detection of OSCC. Response rates ranged
from 26 to 30 percent for medical care providers
to 54 percent for dental care providers. Ninetythree percent of respondents stated that early
detection improves five-year survival. More
dental care providers (dentists, 99 percent; hygienists, 89 percent) than medical care providers
(physicians and nurse practitioners, 78 percent)
responded that they felt qualified to perform oral
cancer examinations.14 Dental care providers felt
adequately trained to conduct oral examinations,
but they were less confident about conducting
lymph node examinations than were medical care
providers.
Most health care providers responded that
training was adequate for oral cancer examinations (dentists, 89 percent; hygienists, 74 percent; physicians, 61 percent; nurse practitioners,
38 percent) and for lymph node examinations
(dentists, 77 percent; hygienists, 64 percent,
physicians, 98 percent, nurse practitioners,
97 percent). Seventy percent of dentists and
ABBREVIATION KEY. CT: Computed tomography.
HNC: Head and neck cancer. MRI: Magnetic resonance
imaging. NPC: Nasopharyngeal carcinoma. OSCC:
Oral squamous cell carcinoma. PET: Positron emission
tomography. SCC: Squamous cell carcinoma. TMD:
Temporomandibular disorder. TMJ: Temporomandibular joint.
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disease.1 Furthermore, Fortin and colleagues2

found that treatment delays of more than 40 days
in early-stage HNC were associated with an
increased risk of locoregional failure and an effect
on survival. These authors recommended that
patients with HNC should be treated in less than
30 days to achieve improved outcomes.2 Results of
a survey of North American radiation oncologists
showed consensus that delays in initiating radiation therapy of approximately one month from
referral were excessive and likely affected the
outcomes.3 However, results from other studies
did not demonstrate a statistically significant
association between disease stage and delays in
initiating treatment or the outcomes of therapy.4,5
In a study conducted in the United Kingdom,
Jones and colleagues6 reported a mean delay from
general practitioners referrals of patients with
HNC to specialists of 5.1 weeks, a mean delay in
performing magnetic resonance imaging of 5.6
weeks, and a mean time to treatment after
referral of 10.3 weeks for radiation therapy and
5.2 weeks for surgery. These findings may not be
typical in all countries or locations, but they point
to the need to study ultimate outcomes in relation
to diagnostic and treatment delays resulting from
high demand, facility access challenges or policy
constraints (such as insurance coverage restrictions). Nevertheless, the longest delay4.9
monthsfrom the onset of symptoms to seeking
care or being referred for diagnosis appears to
have been patient related.6
Researchers have recognized changes in the
epidemiology of oropharyngeal cancer in people
younger than 40 years who lack traditional
tobacco or alcohol risk factors.7-9 In a study of 17
women younger than 40 years with OSCC of the
anterior tongue, Vargas and colleagues7 found
higher rates of recurrence and a shorter time to
recurrence than they did in a comparable group of
men and women older than 40 years. A review of
the literature regarding lesions of the oral tongue
showed higher rates of locoregional failure and
mortality in patients younger than 40 years compared with those older than 40 years.8 However,
mortality outcomes in the other two studies7,9 did
not differ on the basis of age.
The 1998 National Health Interview Survey10
assessed the impact of cigarette smoking and
alcohol consumption on receipt of periodic oral
cancer examinations. The survey results revealed
that tobacco use had no impact on the receipt of
examinations, and alcohol use was associated

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64 percent of hygienists felt inadequately trained

not effective, and the clinician referred the patient
in providing tobacco- and alcohol-use cessation
back to the otolaryngologist. The otolaryngologist
services.
performed a second otolaryngologic examination
In a survey of general dentists, Horowitz and
and identified a nasopharyngeal lesion. Biopsy
colleagues15 found that 81 percent of respondents
results confirmed that the lesion was a nasophastated that they performed oral cancer examiryngeal carcinoma (NPC) (later staged as a
nations in new patients older than 40 years. HowT4N3M0 lesion), which was treated with radiaever, 86 percent of respondents stated that they
tion therapy; however, the disease was not cured
did not conduct oral cancer examinations in edenand the patient died. Legal action was initiated
tulous patients.15 Only 26 percent of patients in
but was later dropped.
Maryland reported having received an oral cancer
Case 2. A 15-year-old girl was referred by her
examination in the previous year.16
orthodontist to an oral and maxillofacial surgeon
A recent survey17 reported that 90 percent of
for extraction of an impacted maxillary right
general dental practitioners conduct examithird molar after completion of orthodontic treatnations for cancer detection in new patients and
ment of four years duration. At a postsurgical
more than one-half conduct examinations during
visit, the surgeon noted a mass in the posterior
annual visits. Two-thirds of dentists reported that
aspect of the hard palate and performed a
they palpate cervical lymph nodes always or usubiopsy.19 A histopathologic examination revealed
ally, but respondents performed intraoral palpaa low-grade mucoepidermoid carcinoma of a minor
tion in less than one-third of patients. The
palatal salivary gland (staged as T1N0M0, stage I
authors found a relationship
disease). An otolaryngologist perbetween the dentists knowledge
formed a partial maxillectomy, and
Dentists may
and time since graduation or parthe final diagnosis was T2N0M0
identify head and
ticipation in a continuing education
intermediate-grade mucoepidermoid
course about cancer. Therefore,
neck cancer at an
carcinoma with a positive surgical
additional training is needed and
margin noted.
earlier stage than
should be tailored toward the proThe patient received radiation
do physicians.
fessional groups involved in HNC
therapy (tumoricidal dose of 6,600
and OSCC assessment.
centigrays). A review of pretreatWe report a series of cases, accumulated from
ment orthodontic study models revealed a palatal
nationally derived practice settings, to identify
mass. In addition, pretreatment radiographs
the need for early and accurate diagnosis of head
revealed superior displacement of the developing
and neck malignancy and referral for treatment.
ipsilateral maxillary third molar not seen on the
We also present a summary of patient and
opposite side of the mouth. Both the study models
medicolegal outcomes. We assembled these cases
and the radiographic findings provided evidence
from the experience of two of us (J.B.E., J.J.S.) to
of the lesions presence at the initiation of orthoemphasize the critical need for early recognition
dontic therapy, some four years before diagnosis
and diagnosis of malignant diseases involving the
and treatment. The claim of failure to diagnose
head and neck.
was settled by the orthodontists insurance
carrier.19
CASE REPORTS
Case 3. A 50-year-old woman with a history of
Case 1. Epstein and Jones18 reported this case
tobacco and alcohol abuse visited her physician
previously in a study of head and neck symptoms
because of a recurring ulceration on the tongue.
and findings in patients with nasopharyngeal carThe physician identified the lesion on initial
cinoma. An otolaryngologist referred a 23-yearexamination, but on follow-up within the month
old woman who did not use tobacco for evaluation
no longer detected the lesion. The patient later
of unilateral facial pain, limited jaw opening and
visited her physician for other reasons, and he did
jaw joint clicking; a tentative diagnosis of a temnot observe the presence of an oral lesion. During
poromandibular disorder (TMD) had been made.
two subsequent visits to her dentist, the patient
The dentist identified left jaw joint clicking, limunderwent extractions in the left mandible, and
ited jaw opening and masseter and pterygoid
the dentist did not identify any mucosal lesions.
muscle tenderness, confirming the clinical diagNine months after the physician made the initial
nosis of TMD. The initial treatment for TMD was
diagnosis of an ulceration, he identified a lesion

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of multiple blind biopsies of the tonsils, base of

the tongue, nasopharynx and pyriform sinus were
negative. The patient received postoperative radiation therapy (total dose, 6,500 cGy). However,
four months after completion of radiation
therapy, the patients physician identified multiple metastases to bone and lung, and the
patient died four months later. The tongue lesion
had not recurred, and no other primary cancer
had been identified. A wrongful death lawsuit
was settled before the case reached trial.
Case 5. A 68-year-old edentulous man was
referred by his physician to one of us (J.B.E.) for
diagnosis of a mass that had been present for
more than one year in the mucosa of the left maxillary residual ridge. The patient had seen a denturist seven times in the previous year for denture adjustment because of pressure and
discomfort in the region. (Editors note:
According to American Dental Association policy,
a denturist is educationally unqualified to practice dentistry in any form on the public.) When
his physician identified the mass, the patient was
referred for tissue diagnosis. The exophytic firm
lesion with surface ulceration measured 3 1 cm;
the denture had been relieved extensively to
allow the prosthesis to be placed over the lesion.
Radiographs revealed bone destruction
extending to the maxillary sinus floor. Biopsy
results confirmed a diagnosis of SCC, which was
staged as T4N0M0. The patient underwent a partial maxillectomy and received postsurgical radiation therapy; in addition, a maxillofacial prosthodontist placed an obturator. The claims of delayed
diagnosis or failure to diagnose and failure to refer
were settled by the denturists insurance carrier.
Case 6. A 50-year-old man visited his general
dentist and a periodontist at alternating threemonth appointments for routine oral hygiene
care. The patient did not smoke or drink alcohol.
The periodontist noted a white lesion measuring
9 3 millimeters on the lateral side of the tongue
near a recently placed implant and crown. The
clinician made adjustments to the crown.
Six months later, an area of the patients
tongue became sore and remained sore for the
next 10 months. The dentist made further adjustments to the crown. Sixteen months after the
leukoplakia was first observed, the lesion had
progressed to a 12- 12-mm ulceration on the
anterolateral tongue. Biopsy results revealed
SCC, which was staged as T2N1M0. Resection
and two courses of irradiation were unsuccessful
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and referred the patient to an oral and maxillofacial surgeon for a biopsy, the results of which confirmed a diagnosis of squamous cell carcinoma
(SCC) (stage T1N0M0).
The patient refused surgery and received radiation therapy to a total dose of 7,000 cGy, with concurrent cisplatin chemotherapy as a radiation sensitizer. Although she responded initially, her
physician identified a recurrence six months after
completion of radiation therapy and chemotherapy.
The physician recommended salvage surgery, but
the patient refused. She was treated with palliative home care and hospice care for two years after
receiving the diagnosis and died of the disease.
Legal action based on an alleged delayed diagnosis
was settled before the case reached trial.
Case 4. A 58-year-old man visited an oral and
maxillofacial surgeon because of a white area on
his tongue that the patient had identified one
year earlier. He described it as recurrent but not
chronic or progressive. The patient reported a 30year history of smoking one-half pack per day (a
15-pack-year history) but had stopped smoking
one year earlier. He reported consuming one alcoholic drink per day. The patient reported that the
white lesion had recurred and, on examination,
the surgeon observed an ulceration (< 1 centimeter) on the lateral aspect of the tongue, with
no lymph node enlargement. The oral and maxillofacial surgeon performed an excisional biopsy.
The specimen was submitted for histopathological
review but it was not received at the laboratory;
thus, the surgeon did not obtain a histologic
confirmation.
The surgeon conducted clinical follow-up
examinations and did not observe any recurrence
at six months. However, nine months after the
biopsy, the surgeon noted an enlarged ipsilateral
jugulodigastric lymph node that had increased
rapidly in size after being identified two months
earlier. Computed tomography (CT) revealed that
the lymph node was 3.0 2.5 cm; subsequent
positron emission tomographic CT studies did not
reveal other findings.
The results of a fine-needle aspiration biopsy
were suspicious for SCC, and an otolaryngologist
head and neck surgeon conducted staging endoscopy. The surgeon did not observe a primary
lesion, and the tongue was free of disease, with
staging as TXN2M0. During subsequent surgery,
the surgeon did not see a primary lesion and
excised the fixed lymph node (measuring 4.0
3.5 cm) in the jugulodigastric region. The results

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in curing the disease. The patient died one year

after receiving the diagnosis. A claim by the
patients surviving children was settled before
litigation.

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dental care providers either do not perform such

oral examinations routinely or perform limited or
inadequate examinations,10,17 which may result in
litigation claims for failure to diagnose oral
cancer.20
DISCUSSION
The cases presented in this report involved
The medicolegal implications of a delayed or
allegations of delayed or incorrect diagnoses
missed diagnosis of oral malignant disease can be
leading to significant morbidity and mortality.
severe. Cases alleging failure to diagnose cancer
The reasons for this suboptimal performance are
and failure to refer patients for an additional
multifactorial and may include a lack of training,
opinion and treatment are likely to be cases with
lack of or inadequate remuneration, early signs
large damage claims owing to the cost of the medthat may be minimal or subtle and/or the low perical care, pain and suffering, potential permanent
ceived prevalence of this disease, resulting in a
disfigurement, lost wages or income claims and
low index of suspicion.13,14 The separation of mediloss of spousal companionship, which all are
cine and dentistry, the nature of dental practice
attributed to the injury. Legal concerns also are
and the prevalence rate of HNC can make diagaffected by the quality and completeness of a
nosis challenging; however, considerable
patients dental and medical records, which often
medicolegal implications exist.
compound legal liability issues when the records
Diagnostic studies. To make an accurate
are inadequate or incomplete.
diagnosis, clinicians must select the most approSigns and symptoms must be
priate diagnostic tests and ensure
sufficient to lead a patient to seek
that the tests are conducted approprofessional care, and they must be
priately and the results are interThe medicolegal
sufficient for the health care
preted appropriately. In cases in
implications of a
provider to recognize an abnorwhich a tissue biopsy is necessary,
delayed or missed
mality and establish a diagnosis.
biopsy site selection, technique and
Dental and medical care providers
diagnosis of oral
quality of the tissue specimen affect
need increased formal training to
the pathologists ability to reach an
malignant disease
improve the detection and recogniaccurate diagnosis. Investigators
can be severe.
tion of oral abnormalities, as well
have shown significant variability in
as to lead to appropriate steps to
pathological diagnoses, with interachieve an accurate diagnosis. In
rater and intrarater diagnostic variacases of uncommon and unusual diseases, clinition21; therefore, the pathologists experience is as
cians should consult health care providers who
important as the experience of the clinician who
have additional training and experience.
obtained the tissue. In a study of patients with
Symptoms. Variations of normal and fluctuoral premalignant lesions, Fischer and colating symptoms (such as mild sensitivity or disleagues21,22 found that use of the punch biopsy
comfort) may reduce the probability of diagnosing
instrument resulted in reduced variability and
cancer. Oral premalignant lesions and early-stage
more consistent outcomes. Tissue evaluation may
require use of special stains and techniques (such
cancers typically are asymptomatic or involve few
as flow cytometry and immunohistochemistry)
symptoms, but they advance over time and may
after the pathologist has conducted a preliminary
lead to symptoms that may include discomfort,
review. These findings reinforce the need to estabpain, limited movement of the involved structure
lish a clinical differential diagnosis or impression
(for example, tongue or soft palate), an ulcerated
before submitting the tissue for evaluation.
mass and/or bleeding from the involved site. In
Some studies, such as direct immunofluorescases of advanced disease, symptoms may include
cence, require specific tissue transport media and
a mass at the primary site, with lymph node
planning at the time of the biopsy. If the
involvement, limited function (tongue movement,
histopathologic diagnosis is not consistent with
dysphagia), weight loss, bleeding and/or neurothe clinical appearance or behavior of the lesion,
logic symptoms.
further investigation is required to achieve a
A malignant disease likely is the most signifidefinitive diagnosis; this may include repeating
cant condition a dental care provider may diagthe initial studies, performing additional testing
nose. However, evidence shows that primary

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nation conducted before she was referred for management of orofacial pain. However, on reexamination of the nasopharynx, the clinician diagnosed previously undetected occult NPC.
Case 2. In the case of the patient with
mucoepidermoid carcinoma of the palate, the
diagnosis was delayed for years, which likely permitted the disease to progress to a more advanced
stage, requiring more aggressive treatment and
resulting in increased morbidity. Experts in the
case and defense counsel did not believe that the
lack of a relationship between the orthodontic
treatment and the carcinoma would be a successful defense, and the defendants insurance
carrier settled the case before trial. All health
care professionals, regardless of their specialization, should be trained to recognize pathology in
the head and neck and be on the lookout for it.
Cases 3 and 4. The case of recurrent ulceration and poor response to therapy (case 3) represents a failure to diagnose and a delayed diagnosis. In case 4, the pathology laboratory did not
receive the initial biopsy specimen, making diagnosis impossible and resulting in advanced disease. This case demonstrates the need to record
details of the biopsy procedure and specimen submission, as well as to follow up with both the
patient and the laboratory if the clinician does
not receive laboratory test results within a reasonable time frame.
Cases 5 and 6. Case 5 represents a delayed
diagnosis with a poor outcome. Case 6 represents
the need for a thorough examination, consistent
record keeping and effective communication
between referring health care providers (in this
case, a general dentist and periodontist). One
clinician noted the presence of a lesion, while the
other did not, which likely led to a delay in biopsy
and diagnosis.
Oral manifestations of disease. Patients
with advanced HNC may seek care because of
symptoms, which increases the likelihood of recognition, leading to a correct diagnosis (Table). Oral
manifestations of disease that is not SCC also may
occur. Dental care providers must maintain an
index of suspicion to recognize abnormalities that
may reflect hematologic malignancy such as pallor,
fatigue, petechiae, hematoma, gingival and lesion
bleeding, and limited inflammatory response to
infection or trauma. In addition, metastatic disease
from distant primary cancers may manifest in the
head and neck with pain, numbness, tooth
mobility, a mass or radiographic changes. In the
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or referring the patient to a more experienced

health care provider. In addition, there are conditions such as proliferative verrucous leukoplakia
for which a clinical diagnosis is supported by histologic findings but is not based on histopathologic findings alone.23,24 In these cases, experienced dental care providers working in concert
with pathologists and other health care providers
can facilitate the diagnosis.
Moreover, incisional biopsy and other tissue
techniques including exfoliative cytology, brush
cytology and fine-needle aspiration, which involve
cell collection and interpretation on a tissue
smear, are subject to variability in interpretation
by pathologists. Molecular techniques may add
information to that obtained in tissue evaluation
and increase the accuracy of the tissue diagnosis.
Additional diagnostic testing may include
imaging (for example, dental radiographs, CT),
the results of which require interpretation by
radiologists and other health care providers; such
testing is subject to the limitations of the imaging
modality chosen and the variability in training
and experience of the radiologists.
Case 1. The patient with NPC exhibited symptoms that overlap those of TMD. Patients with
advanced NPC may have lymphadenopathy and
skull-base involvement that may produce multiple cranial neuropathies, further complicating
the presentation profile. Reiter and colleagues25
reviewed nine cases of NPC that originally were
diagnosed as TMD; they noted overlapping symptoms, including earache or other otologic, nasal or
paranasal symptoms; facial pain; and trismus, as
reported in a review of patients admitted for
treatment of NPC.18
In a case series of 52 consecutive patients with
NPC, Epstein and Jones18 reported that the diagnosis was incorrect in 19 percent of cases, with
the majority of patients thought to have an ear,
nose or throat infection and 2 percent TMD. The
mean delay from manifestation of initial signs
and symptoms to diagnosis was 8.3 months
(range, one to 36 months). Pain was the most
common complaint, described as a headache or an
earache and jaw pain in 12.5 percent of patients;
13.5 percent of patients had other symptoms commonly associated with TMD, with key differentiating symptoms including nosebleed, nasal symptoms, reduced hearing and/or a neck mass.18 The
delayed diagnosis in case 1 was unrelated to the
patients dental care, owing to the negative findings of the nasopharyngeal endoscopic exami-

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TABLE

Possible symptoms and signs of oral involvement by malignant disease.*

DISEASE AND STAGE
Squamous Cell
Carcinoma
Early stage
Advanced stage

Salivary Gland
Cancer
Major salivary gland
Early stage
Advanced stage

Advanced stage
Lymphoma
Early stage

Advanced stage

Leukemia
Early stage

IMAGING AND TESTING

SIGNS

None, discomfort
Limited function, numbness,
pain, bleeding, dysphagia,
dysarthria, weight loss, oral or
neck mass

None, mass, gland swelling

Irregular white and/or red lesion,

ulceration, oral mass, friable tissue
Mass, necrosis, bone invasion,
lymph node involvement

None
Dental radiographs: occasional bone
involvement, regional lymph node
involvement; MRI/CT: bone and/or softtissue involvement, including regional
lymph nodes; PET -CT; bone scan

None, mass, swelling, secondary

bacterial sialadenitis
Mass, regional lymph node
involvement, numbness, paresis/
paralysis

MRI, CT

None, mass, gland swelling,

discomfort
Neck mass, numbness, sinus
symptoms (antral involvement)

Mass, mucosal ulceration

None

Sinus complaints, dysfunction,

dysarthria, dysphagia

CT findings positive: palatal bone

invasion, sinus involvement

None, fatigue, malaise, fever

(B symptoms#), mass

Rubbery mass (intraoral and

cervical lymph nodes)

Pallor, petechiae (indicative of

marrow involvement)

Necrosis, ulceration, secondary

infection

Biopsy, dental radiographs, cone beam

imaging, CT: bone involvement, softtissue involvement
Biopsy, dental radiographs, cone beam
imaging, CT: changes in complete blood
cell count, bone involvement, soft-tissue
involvement

Fatigue, malaise, easy bruising,

bleeding and/or enlarged
gingiva, pallor, viral reactivation
and/or secondary or recurrent
infections

Gingival enlargement with or

without erythema, soft-tissue
necrosis with limited inflammation,
progressive and/or necrotizing
infection, bad breath and/or bad
taste, tissue pallor, petechiae/
ecchymoses /hematoma, poor
healing with tissue manipulation
Same as above

Imaging: alveolar bone change;

complete blood cell count

Mass, regional lymph node

involvement, numbness,
discomfort, paresis/paralysis

MRI, CT

Advanced stage

Limited inflammatory response,

infection with limited symptoms

Metastatic Disease

Numbness, pain, tooth mobility,

history of malignancy

Tooth mobility, unilateral

anesthesia, gingival or soft-tissue
mass rare

Imaging: radiolucent and/or mixed

radiolucent-radiopaque lesion
of the posterior mandible

None

Neck node, stuffy nose, nosebleed

(signs less likely at this stage)
Neck node, stuffy nose, nosebleed

Nasopharnygoscopy, CT, MRI

Nasopharyngeal
Carcinoma
Early stage

Imaging: alveolar bone change;

complete blood cell count

Advanced stage

Facial, ear and/or TMJ** pain,

headache, numbness, cervical
lymph node enlargement,
plugged ear, stuffy nose, nosebleed, nasal-sounding speech

Sarcoma

Discomfort and/or pain,

Soft-tissue mass with or without
numbness, mass, limited function ulceration, bony mass

Dental radiographs, cone beam

imaging, CT, MRI

Melanoma

None, discomfort and/or pain,

numbness, bleeding

Imaging

Pigmented (rarely nonpigmented)

lesion: flat or elevated, with or
without ulcer

Nasopharnygoscopy, CT, MRI

* This is a brief summary of symptoms and signs and is intended only as a guide. General and more common symptoms and signs are presented;
this is not an exhaustive list. Symptoms and signs vary, depending on location and stage of disease; typically, there are few symptoms at onset.
However, they often advance and increase with disease progression. Determination of disease cannot be made on the basis of a single finding or a
combination of findings, but requires a general understanding of the specific condition and location of the tumor, diagnostic testing and/or referral.
Biopsy may be indicated for oral lesions/bone changes in all conditions.
MRI: Magnetic resonance imaging.
CT: Computed tomography.
PET: Positron emission tomography.
# B symptoms: General symptoms that may be present in people with lymphoma, including lymph node enlargement, weight loss and night sweats.
** TMJ: Temporomandibular joint.

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Minor salivary gland

Early stage

SYMPTOMS

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case of suspected inflammatory or

BOX
traumatic lesions, removal of the potenDetailed patient records pertaining to oral
tial cause and confirmation of resolulesions.*
tion commonly are recommended at a
two-week follow-up visit; however, cliniEXAMINATION FINDINGS
dHead and neck abnormalities (for example, asymmetry, masses, cranial nerve
cians should consider this approach
abnormalities)
only for patients who can be expected to
dLymph node assessment: location, size (millimeters), texture (soft, firm, hard),
tender or nontender, mobile or fixed
comply with follow-up. If the clinician
d
Lesion: location, size (length width), color (red, white, mixed), surface
identifies highly suspicious lesions,
(ulcerated, smooth, verrucous, fissured), elevation (none or thickness in
tissue diagnosis should not be delayed.
millimeters), photographic documentation, adjunctive test results
dRadiographic alterations: site, quality, size
Delays in diagnosis are common alledOther findings
gations in legal actions involving
CLINICAL IMPRESSIONS/DIFFERENTIAL DIAGNOSIS
26
patients with HNC. In 2001, the
TREATMENT PLAN/PROCEDURES
dDiagnostic test request or referral, decide to perform biopsy (site selection,
average cost of defending medical maltechnique, quality of specimen), histopathologic examination
practice claims in the United States
findings (special stains and/or tests), interpretation by pathologist
was $28,801 per case, and the median
dReview test results with clinical findings; if nondiagnostic or conflicting,
repeat test or order different test, refer patient, document findings
damages award in medical malpractice
d
Referral: record patients name, date of appointment
27
cases was $1 million in 2001. In 49
dFollow-up plan: repeat examination and record findings, record test results
percent of cases of HNC, biopsies
or referral reports
allegedly were indicated but not per* Maintaining detailed records allows the clinician to assess a lesions progress and the
formed.26 In these cases, the allegations
nature of changes. Treatment plan records document variability of each step owing
included delays in diagnosis in the face
to patient and clinician variables (for example, experienced clinician and pathologist,
consultations with other health care providers, oncology centers/teams).
of signs and symptoms consistent with
or suggestive of cancer.
Jury verdict reviews. Lydiatt20 obtained jury
monly alleged failure to perform a biopsy and
verdict reviews for 50 cases of HNC from a legal
failure to refer.20 Judgments in 45 percent of the
database (Westlaw, West Publishing, St. Paul,
50 lawsuits were against dental care providers,
Minn.) of all state and federal cases from 1984 to
with 60 percent of these cases alleging that the
2000. The outcomes of these cases from 21 states
dentist did not perform a biopsy.20
were as follows: defendants won (42 percent),
Risk management. Therefore, to reasonably
plaintiffs won (32 percent) and the parties
manage risk, health care providers must
reached a settlement (26 percent).20 The most
endeavor to recognize abnormalities, conduct
common allegations were failure to diagnose,
diagnostic procedures without delay (for example,
failure to perform a biopsy, failure to refer and
a biopsy) and reach a definitive diagnosis (after
surgical complications.
obtaining informed consent) or refer the patient
The cases identified by Lydiatt20 were assoto a more experienced dental or medical care
ciated with young patients (mean age, 45 years);
provider who can make the diagnosis relative to
in 47 percent of these cases, the patients died.
the initial signs and symptoms. The length of
In patients younger than 47 years, misdiagnosis
delay that is harmful is unknown, as the impact
was alleged in 19 percent of cases, with awards
of a delay on patient outcomes is not well docu(60 percent of cases) averaging $755,824.20
mented. However, from a legal perspective, parPatients older than 47 years received awards
ticularly in cases of inadequate documentation, a
averaging $495,417.
delay in diagnosing or referring a patient could be
Plaintiffs alleged a failure to diagnose in 86
costly.
percent of cases, which involved general medical
Malpractice claims. Although the requirecare providers (100 percent), otolaryngologists (89
ments may vary from state to state, in a claim
percent) and dentists (85 percent), the majority of
filed for professional malpractice, the plaintiff or
whom were general practitioners.20 If the delay in
the representative of the patient generally must
diagnosis was three months or less, a verdict in
prove certain elements before he or she can
favor of the defendant was found in 86 percent of
recover a judgment. Those elements typically
include a duty owed by the professional to that
cases; if the delay was more than three months, a
patient (in other words, there was some type of
verdict in favor of the defendant was found in
20
dentist-patient relationship), there was a breach
only 40 percent of cases. Plaintiffs also com-

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tiffs family and/or animosity toward the defendant. These factors combined make a case
involving a claim of failure to diagnose cancer a
serious risk for the health care provider.
It is not surprising that a poor patient outcome appears to be related to a judgment against
the health care provider.26 However, a poor outcome is not evidence of malpractice or negligence,
but it absolutely will increase the odds that an
injured party will pursue a lawsuit. The amount
of an award or settlement appears to be related
to mortality or extent of the morbidity or disability,26 and it is this potential that will drive
the lawsuit.
Need for documentation. The most common
allegation in malpractice cases involving HNC is
a delay in diagnosis. Frequently, plaintiffs are
younger than expected, and delays in diagnosis
and treatment are associated with increased morbidity and possibly poorer outcomes.20,26 Poor outcomes might be associated with a delay in diagnosis, stage of the disease or biological activity of
the disease. An adequate defense in oral cancer
cases requires clear and consistent documentation of clinical information. Many cases can be
defended on the basis of the aggressiveness of the
cancer but only with adequate documentation of
clinical findings, clinical impressions and outcomes of tests and biopsies (Box). Because
patients refusal to undergo recommended procedures can independently form the basis of a
defense,26 practitioners also must document these
actions.
CONCLUSION

The purpose of this article is to emphasize the

need for dental professionals to obtain comprehensive histories, be vigilant, perform thorough
head and neck and oral examinations, and appreciate that all providers should be alert for abnormalities that may represent potentially malignant disease. We chose these medicolegal cases to
highlight the importance of dental professionals
examining patients for oral premalignant and
malignant disease and head and neck involvement by malignant disease, to provide guidance
in patient care and to review the possible impact
of health care providers potential legal liability.
Disclosure. None of the authors reported any disclosures.
Nothing in this article is intended nor should it be construed to create
or provide any legal standard of appropriate care or practice or to provide legal advice. Rather, every factual scenario must be evaluated on
its own merits as to any proper standard of care and with regard to any
potential specific causal link to injury.

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of that duty (commonly known as a breach of the

standard of care) and the injury was proximately
caused by the deviation from the standard of
care.28,29
Expert testimony. A deviation from the
standard of care almost always must be established through expert testimony, meaning that a
professional with expertise in the area of care will
state openly under oath that the defendant dentist breached the standard of care. The requirements and qualifications of the expert will vary,
but generally he or she must have a license the
same as or similar to that of the defendant and
have experience in or otherwise be qualified to
render opinions in the area of practice that is at
issue.28 From a practical perspective, that typically requires liability experts in cases involving
dental care providers to have had dental training,
experience and licensure similar to those of the
defendant dentist, as well as some expertise in
the area at issue.
Regarding the issue of proximate cause and
injury, which often is a key defense in a case
involving failure to diagnose cancer, the range of
experts available to both plaintiffs and defendants is far greater than it is for other illnesses
because causation and damages experts are not
limited to those with dental expertise and licensure, but rather include many types of medical
care providers with expertise in a variety of specialties, including otolaryngologistshead and
neck surgeons, oncologists, pathologists and other
physicians. Regarding the specific issue of damages, even more experts are available to develop
treatment plans for the injured party and to
determine future costs of care and the time value
of a lost opportunity to earn money.
Lawsuits in dental and medical malpractice
cases are decided on the basis of facts and applicable law.29 If a judgment is entered in favor of a
plaintiff, the result is calculated in a dollar value.
In cases involving serious injuries, the potential
award for disability and disfigurement can carry
a high value, as can the potential value for past
and future medical care expenses, loss of income,
and pain and suffering. In a potential defense, the
judge may give consideration to a patients lack of
cooperation with the health care provider.
Although the facts and law determine the outcome, intangible factors in a case involving allegations of a failure to diagnose cancer can drive
the dollar value higher, including issues such as
sympathy generated by the plaintiff or the plain-

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