A parent’s worst nightmare occurred when the mother of 5-year-old A. Hernandez (first name withheld for the child’s privacy) knew something was wrong on the way home from the dentist’s office. Her son lost consciousness on the way to the emergency room, and was unable to be revived until the medications used by employees at Rose Dental Group of Escondido, California were confirmed and reversed. Unfortunately, the damage had already been done. The young patient began exhibiting developmental delays, behavioral disturbances, and terrors and anguish no child should have to experience.
A jury saw the details presented by lawyer Robert Vaage, and decided to award over $3.5 million dollars to the child’s family (Hernandez v. Patterson, et al., San Diego Superior Court, Case No. 2020-00039996-CU-MM-CTL). If you need fierce and effective legal representation for your child, contact the Vaage Law Firm right away at (619) 338-0505. We are here to help families secure the financial support they need to stay strong for their children. For more information on this case, dental negligence, and the impact of child brain injuries, read on.
What Went Wrong During a Dentist Visit to Cause a Child’s Brain Injury?
In the medical malpractice case brought against Dr. Mahtab Saadatmandi and Rose Dental Group, here is the evidence the jury found compelling enough to award a multi-million dollar decision:
- After a routine in-office dental procedure, 5-year-old A. Hernandez wasn’t okay — he soon lost consciousness, and was unresponsive to stimuli at the emergency room.
- Only when the ER doctors called Dr. Mahtab Saadatmandi and the Rose Pediatric Dental Group to find out what medications had been used on the child were they able to return the boy to consciousness.
- When they administered the antidote, the kindergarten-aged child woke up screaming, and his mother started noticing behavior and academic problems with her son: bedwetting, hitting himself, and night terrors. He was also falling behind in school.
- A neuropsychologist expert tested him and found multiple cognitive problems, all in areas of the brain associated with lack of oxygen.
- On July 24, 2023, a jury awarded the family a total of $3,550,000 for medical expenses due to brain injury, lost earnings, and non-economic losses like diminished quality of life, physical pain, and mental suffering.
It is evident that A. Hernandez suffered a hypoxic brain injury (partial oxygen deprivation to the brain) from oversedation by a combination of oral conscious sedation medication used during a dental procedure. The jury found that Mahtab Saadatmandi, D.M.D., the owner of Rose Dental Group, was negligent in the management and supervision of dental services and violated the law.
Why Was Dr. Mahtab Saadatmandi of Rose Dental Group Ordered to Pay Over $3.5 Million to an Injured Child?
This case hinged on proving that there was shockingly casual negligence exhibited by Dr. Mahtab Saadatmandi, and Rose Dental Group. Attorney Vaage explained the failures and violations to the jury by showing that:
- The California legislature recognized the need for a safety system and created laws and regulations for the use of oral conscious sedation drugs in pediatric dental procedures.
- This safety system includes monitoring vital signs, taking a medical history, performing pre- and post-sedation assessments, notation of the patient’s condition at discharge, and recording the rationale for sedation.
- Dr. Saadatmandi and his office personnel violated these laws. According to Bob Vaage: “DentiCal pays more for ‘behavior management’ than ‘conscious sedation,’ almost six times more. The biller at Rose Dental admitted to making up diagnoses based on a Google search to justify the more expensive billing code for the plaintiff.”
It is disturbing to realize that a life-long brain injury was inflicted on a happy, thriving little boy because the procedure was more profitable to the Rose Pediatric Dental Group.
Legal Specifics Involved in the Case
Attorney Vaage shares some of his insights for anyone considering or currently involved in a dental malpractice case:
Dentists and Ostensible Agency
Dental practices are very different from hospitals. When a patient signs a hospital consent for admission, the form is very specific that the physicians who treat patients are independent contractors and are not employees of the hospital. Patients are also told that the physicians may bill separately for their treatment while the patient is in the hospital.
The consent form at the dental office where Hernandez was treated has no such language. Patients (and their parents) are not told that the dentists are independent contractors. Patients believe that the dentists are employed by the dental practice. CACI 3709 on Ostensible Agency instructs the jury that to establish a claim for ostensible agency, the plaintiff must prove that the defendant “intentionally or carelessly created the impression that [the dentist] was defendant’s agent” and that the plaintiff reasonable believed the agency and reasonably relied on that belief.
Hernandez could have easily proven ostensible agency. However, the problem with an ostensible agency argument is that The Dentists Insurance Company (TDIC) has a coverage exception for the negligence of an independent contractor dentist, including theories of ostensible agency.
Hernandez sued the doctor performing the conscious sedation (Dr. Patterson), the dental practice (Rose Dental), and the dentist who owned the practice (Dr. Saadatmandi). Here is how plaintiff was able to trigger coverage for the owner of the dental practice for the negligence of her dentist.
Buried in a publication by TDIC was a brief reference to a California Business & Profession Code section that could potentially be problematic for TDIC, because it creates vicarious liability by a dentist owner of multiple dental practices for the dental services provided at the practices. B&PC section 1658.1 governs the legal responsibility of a dentist maintaining more than one dental office.
In order to avoid coverage exclusion, plaintiff entered into a stipulation with Defendant Mahtab Saadatmandi, D.M.D., who owned two dental practices, including the office where the negligence occurred. She stipulated that she owned more than one dental office and that any negligent dental services provided by Patterson at her dental practice was her legal responsibility pursuant to section 1658.1. This code section in essence forced TDIC to provide coverage to Saadatmandi for the negligent medical services provided by Dr. Patterson.
Remember that section 1658.1 is only applicable to dentist owners who maintain more than one dental office, so research the dentist owner at the Dental Board website by not only the name of the dentist, but also the business name. Look for additional office permits, multiple addresses, and fictitious name permits.
Oral Conscious Sedation – Negligence Per Se
Pediatric dentistry is big business, and oral conscious sedation is a large part of the practice. Dentists are required to have special licensing to perform conscious sedation. Business & Professions Code, Article 2.87, sets forth the requirements for Use of Pediatric Minimal Sedation. Section 1647.30(a) defines “minimal sedation” and (b) requires that the “drugs and techniques used in minimal sedation shall have a margin of safety wide enough to render unintended loss of consciousness unlikely.”
In Hernandez, the code section that was applicable at the time (and has since been repealed and replaced) was B&PC section 1647.14. It required a physical evaluation and medical history of the minor to be sedated; the presence of the practitioner during sedation; and a safety margin for the medications. The jury found that defendants Saadatmandi and Patterson violated this statute.
California Code of Regulations, Title 16, Section 1044.5 sets forth Facility and Equipment Standards [for Oral Conscious Sedation]. While defendants failed to meet the equipment standards, plaintiff was focused on the particular section that covers the maintenance of adequate medical records.
The Hernandez records did not contain many of the notations required by this regulation. In particular, the records did not contain a “statement of the patient’s condition at the time of discharge” or the “rationale for sedation.” The Hernandez jury found that the defendants Patterson and Saadatmandi violated this regulation as well.
Billing Records and Calendar
The calendar for the date of Hernandez’s procedure specifically noted, “Starting today we can bill Medical [Medi-Cal] for D9920 $140.” D9920 is the billing code for “behavior management.” Based on deposition testimony, Medi-Cal/Denti-Cal only pays $25 for oral conscious sedation. However, if the patient requires behavior management, Medi-Cal will pay $140. Seven patient were booked that day before lunch, all purportedly requiring behavior management medication.
According to the biller, she “Googled” diagnoses for Hernandez to justify the D9920 billing code for payment for behavior management. She didn’t know if Hernandez had the diagnoses she listed to justify behavior management: acute distress, dental phobia, restlessness/agitation, nervousness, and excessive crying. She wrote that he was restless and fighting his mom, agitated, uncooperative, and disruptive. Photos the mother took at the dental office showed a child who was playing with the toys in the front office, posing for photos. No tears in sight.
Vaage says he is proud that he was able to prove this child had a brain injury without any evidence of neurologic or physical injury. The damages and causation arguments were all based on neurocognitive testing and educational records showing a decline after the overdose.
Plaintiff’s neuropsychologist expert was able to map and correlate test results with the parts of the brain most vulnerable to a hypoxic event. Like most medical negligence cases, including dental malpractice, causation is the most difficult element to prove.
Contact a Dental Malpractice Lawyer
Children’s injury cases have unique legal considerations compared to adult injury cases. The timeline to bring a case is different, the responsibility of the person who was supposed to be caring for the child must be examined, and the profound life-long impact of the injuries must be fully and accurately calculated.
A brain injury before or during a child’s key developmental years, for example, may cause difficulties they must manage for the rest of their lives. Families only have one opportunity to bring a lawsuit for these injuries, so the settlement or verdict must account for the future cost of care, and inevitable economic inflation. All of these needs were addressed in the case of A. Hernandez, as well as the emotional distress caused to the child and his loved ones.
At Vaage Law, we have extensive experience in brain injury cases, and a network of experts that can be called upon to prove them in court. We also have a track record of helping the families of children injured by medical negligence, including a $25.6 million Kaiser arbitration award for an injured child.
Contact Robert Vaage and the Vaage Law Firm at (619) 338-0505 right away if your child has been harmed by negligence. Our office will handle the investigation of your case, secure expert testimony as needed, and handle your case through negotiations or at trial if the other side refuses to deal fairly. Your initial consultation is free and fully confidential, and we work on contingency, meaning we only collect our fees after we win on your behalf.
At Vaage Law, we invest our resources in your case so that families experiencing financial hardships can pursue justice without having to pay for it upfront. Trust us with your child’s future — we will do everything in our power to serve their best interests.