While developments in dental technology, equipment and materials have transformed many dental procedures over the years, the removal of third molars still presents many of the same dentolegal risks as in former years. Perhaps the most significant factor, of which we need to be aware, is that while the procedure itself might be broadly the same, many of the patients involved are not.

This is compounded by the fact that patients usually attend for removal of their 'wisdom teeth' fearing the worst. This is problematic, as the patient can be emotionally heightened, impacting on their ability to listen to and understand information, or to place the appropriate amount of relevance on each piece of information, failing to appreciate which bits are most relevant to them.

The fact that today's patients have greater expectations and are often more aware and more questioning is also part of the story; it is equally important to appreciate that today's patients are generally less forgiving, less tolerant of adverse outcomes and more litigious. The increased drive for litigation is fuelled by articles from claimant law firms, easily found through online search engines.

In order to protect our patients, and protect ourselves, we need to go ‘back to basics’.

Preoperative assessment – take the time to get it right

Start with a correct diagnosis – if you are considering the extraction of a third molar because of non-specific pain, how sure are you that the third molar is actually the cause of the pain, rather than being seized upon as a convenient scapegoat to explain it, where other investigations have failed to do so?

Appropriate investigations are critical – including one or more good quality radiographs which not only provide a clear image of the tooth, its root configuration and anatomy, and the surrounding bone, but also the relationship of the tooth to adjacent teeth and to other structures. Significant amongst these are its relationship to the maxillary tuberosity and sinus, to the lower border of the mandible, to the ascending ramus and to the inferior dental (alveolar) nerve bundle within the mandible.

Check the medical history carefully and, in particular, any relevant risk factors (including medication) that might influence a) bone and soft tissue healing and b) the likelihood of postoperative bleeding, swelling, infection.

Of increasing concern is the potential for postoperative complications related to patients on medications to manage osteoporosis, which can affect wound healing and increases the risk of medication related osteonecrosis of the jaw (MRONJ). If administered by their GP, many patients will not think to mention this, or include it in the list of medications they take.

The social history is particularly relevant when contemplating this procedure and it is sensible to enquire specifically about the patient's occupation.

Nerve damage, and the associated sensory deficit, can be disturbing enough for any patient, but loss of sensation and taste, or interference with speech and articulation, can have devastating consequences for patients who speak, sing or play certain musical instruments professionally. Similarly, for chefs, taste. A further consideration is the timing of the procedure relative to other important events in the patient’s life; many young adults for whom this procedure is being considered may have crucial life events on the horizon. Do they need this procedure? And if they do, do they need it now, just before those important exams?

Taking all the above into account, the consequences of any adverse complication need to be carefully balanced against the indications for the extraction(s), in the specific circumstances of each individual patient.

Speaking of need – attitudes to the elective removal of third molars have changed, albeit more in some parts of the world than in others. A particular risk exists where there is no immediate or pressing need to remove the tooth – for example, where one symptomatic tooth is being removed under a general anaesthetic, and the removal of one or more of the remaining (symptomless) third molars is recommended at the same time. The need for the removal of each individual tooth should be clearly established and discussed with the patient, considering in particular:

• Are the risks of leaving the tooth in situ greater than the risks of extraction?
• How many episodes of pericoronitis have there been, of what severity, how were they managed and with what success?
• Is there caries in the third molar or in the adjacent tooth?
• Is there any clinical or radiographic evidence of pathology associated with the third molar?

One final consideration in the preoperative assessment is that of whether the clinician has the necessary skills, experience and competence to carry out the proposed extraction safely and successfully. Where there is any doubt in this respect, a referral to a specialist may be indicated.

Information, warnings and consent

Any surgical procedure has risks. It is important to take the time to explain carefully to the patient, in terms that the patient can understand:

a) why the extraction is considered to be necessary
b) what the procedure involves
c) what the possible outcomes might be.

It is equally important to record in the notes that this has been done. Patients will generally not be able to anticipate these complications for themselves, and the clinician has an obligation to give the patient any explanations and warnings necessary to enable the patient to consent to the procedure with a full knowledge and understanding of what to expect. Unless steps are taken to ensure that this is the case, the patient may be able to argue persuasively after the event that they would never have agreed to undertake the procedure if they had realised what the consequences might be.

In respect of possible inferior dental nerve damage, take care using a standard form of words routinely, or a 'blanket' warning for every patient. It is usually possible to assess from a good preoperative radiograph whether the risk of inferior dental nerve damage is (for example) low, moderate, high or very high. If your assessment is that the patient is at high risk, then the warning given to a patient should reflect this, and ensure the patient meaningfully understands what this could mean for them, for the rest of their life.

Lingual nerve damage is much more difficult to predict, although studies have shown that there is a loose correlation between the severity of any impaction and the complexity of the procedure, and the likelihood of lingual nerve damage. This very unpredictability is precisely why it is essential to warn all patients of this risk. Many cases of lingual nerve damage have been reported in the past, irrespective of the surgical technique used and even associated with routine forceps extractions.

Similarly, although information leaflets and advice sheets can be very helpful in assisting the patient to understand what the procedure involves, one must bear in mind that each procedure and patient is different – patients need to know what the risks are in their individual case, rather than being given information of a general nature, perhaps accompanied by statistical assessments of the incidence of complications reported in the professional literature.

Written consent forms can sometimes be helpful in supplementing the communication process, or even as a focus to confirm that these discussions took place, but they should never be used as a substitute for an effective communication process that enables consent to be achieved. Consent is a communication process and not simply a signature on a piece of paper.

Focusing upon the exchange of information and the patient's understanding of what has been said, is the key to avoiding the dentolegal problems frequently associated with this aspect of the removal of third molars.

Those who accept referrals from colleagues for the removal of third molars need to be aware that one of the treatment alternatives is still to leave the tooth (or teeth) in situ. Just because the patient has attended expecting the treatment, it does not mean that you need to do it.

There is a danger that both the referring clinician, and the clinician who accepts the referral, will each be assuming that the other is responsible for the consent process, including that of discussing with the patient whether or not it is sensible to be considering the extraction(s) at all. Always have the discussion with the patient, whatever you believe they may previously have been told. And write that discussion in your clinical notes.

Surgical technique

There is a commonly held misconception that the raising of a buccal flap only, and avoiding bone removal on the lingual or distolingual aspect of the tooth, will avoid any risk of lingual nerve damage. It is true that in the literature the raising of lingual flaps, the use of lingual retractors and/or the use of relieving decisions in the retromolar area, have all been associated with a higher risk of lingual nerve damage. It is equally true, however, that many experienced oral and maxillofacial surgeons use these techniques routinely and yet experience a very low incidence of lingual nerve damage.

In the case of inferior dental nerve damage, where there is close proximity between nerve bundle and root apex, the surgical technique (for example, sectioning the tooth) must be such as to minimise the risk of severing, stretching, tearing or compressing the nerve bundle.

Collateral damage

In addition to nerve damage, one needs to be mindful of the risks of fracturing the mandible (or leaving the mandible weakened and vulnerable to spontaneous fracture postoperatively), fracturing the maxillary tuberosity or damaging adjacent teeth. This can range from dislodging fillings and crowns, to iatrogenic damage from burs and other instruments, to the distal surface of the second molars. In each of these situations, by remaining alert to the potential risks and taking some simple steps to minimise them, the clinician can help many of the associated problems.

Postoperative management

Patients who are not adequately prepared for some of the adverse complications of third molar surgery can find them very distressing.

The extent of any swelling, pain, bruising and discomfort can vary widely from one patient to another, but altered sensation can be very worrying for patients unless they have been made aware that temporary sensory disturbance of this kind is not unusual, and does not necessarily indicate that anything has gone wrong with the procedure.

Caring and attentive aftercare is the key to preventing this commonly encountered complication from becoming the basis for a complaint or claim.

Where postoperative complications do occur, the records should show clearly what the patient was complaining of, what steps were taken to investigate the problem, the differential diagnosis and the treatment provided or advice given (including any medication given, prescribed or recommended). If a referral for specialist advice or management is considered or discussed, a note of this should appear in the records.

Recording negative findings (eg “no lymph node enlargement or tenderness” or “checked for mandibular fracture/lower border intact”) as well as positive findings (eg “swelling reduced”) can be helpful if you are called upon to explain to a critical third party, such as the regulator or a lawyer, what was actually discussed.

The importance of this lies in being able to demonstrate that all the appropriate investigations were carried out, before reaching the diagnosis and treatment plan.

Postoperative instructions should be given, perhaps with the help of a printed advice sheet, and this fact should appear in the clinical records. If the patient chooses not to follow the advice given, this should also be clearly recorded.

Arrangements to review the patient's progress should be clear, mutually agreed and recorded in the notes.

Records

Each one of the steps described above needs to be meticulously recorded in the clinical notes. In our experience, deficiencies in such records are much more likely to render a claim or complaint indefensible, than any shortfalls in the clinical technique itself. Accurate, contemporaneous clinical notes are critical when dealing with allegations of inadequate postoperative assessment, a failure to warn appropriately of risks, problems arising from a poor technique or shortfalls in postoperative management.