1. What is considered dental malpractice, definition?
2. How to spot a dental malpractice?
3. Dental malpractice: When treatments go wrong.
3.1 Examples of dental malpractice.
4. What shapes a dental malpractice lawsuit?
5. Is my injury worth a lawsuit?
6. Who can be sued for dental malpractice?
7. How to sue: Step by step.
8. Documents and their importance.
9. Should I settle?
What is considered dental malpractice, definition?
When talking about dental malpractice, we talk about an event in which a patient is badly hurt when or after receiving dental attention. This specific dental treatment, thus, can considered to be under the standard of what proper dental care should be.
How to spot a dental malpractice?
A dental malpractice is easy to spot: when a person receives a dental treatment from a dental health professional and this treatment happens to be below the acceptable standard of what is expected from a professional, we are indeed talking about a dental malpractice. This treatment has to be the direct cause of a damage to the person’s well being.
Dental malpractice: When treatments go wrong.
The most common dental procedures are also the ones in which more cases of malpractice can be found.
- Endodontics. An endodontic procedure is such a delicate a complex situation that even the most experienced dentists can fail to perform correctly. Some injuries that are the result of a poorly practiced endodontic procedure include damage to nerves, instruments or parts of instrument left in the root canal, infections and abscesses, embolisms and even death as a result of the later ones.
- Extractions. Extractions are the procedures that accumulate the larger number of malpractice lawsuits. An extraction that is not properly done can easily transform into a nerve injury, severe infections, bone perforation, or even the loss of healthy teeth.
- Crowns, bridges, implants, and veneers. Problems related to this type of treatment include infections, poor measuring that results in too large or too small of a crown, bridge implant and veneers, healthy teeth that end up being reduced by the burr to the point of nearly exposing the nerve, causing chronic pain. Total loss of teeth is often a result.
- Injections. Expertise is key when administering injections. A bad injection can hurt nerves, can hit bone or can trigger an allergic reaction. So, it is not only about the injection itself, but it is also about what is being injected.
- Orthodontics. Poorly performed procedures of this nature can often become serious oral injuries.
- Periodontal disease. This one is often not diagnosed in due time and will result in the loss of teeth.
- Anesthesia. These complications are sadly, quite common. Failing to administer the right amount of drugs can often result in death.
Examples of dental malpractice:
Some of the most common cases of dental malpractice include (but are not limited to): not diagnosing a disease (such as cancer) on time, not treating in due time an infection, wrong administration of anesthesia, problems when extracting teeth, failing to foresee possible complications and not preventing them, failing to supervise assistants, etc.
Here are some statistics that better illustrate the kind of injuries caused by the treatments that own the larger number of lawsuits.
Nerve damage |
Forgotten instruments or pieces of instruments |
Teeth loss |
TMJ injuries |
(Severe) infections |
Death |
Others (bone perforation, fractures…) |
|
|---|---|---|---|---|---|---|---|
| Extractions | 15.8% | 7.9% | 6.3% | 23.8% | 12.69% | 33.52% | |
| Endodontics | 7.3% | 21.9% | 43.9% | 9.7% | 17.2% | ||
| Crowns, bridges, veneers, implants. | 32% | 24% | 4% | 40% | |||
| Orthodontics | 22.22% | 77.78% |
This data comes from Dr. Baxters single experience with dental malpractice. However, it is a fine example of what we may encounter either as patient or as dental health provider.
What shapes a dental malpractice lawsuit?
The existence of a dentist-patient relationship.
The relationship between a dentist and their patient is usually easily proved. Most cases go through this point automatically, by default.
What would be the appropriate standard of attention expected for this specific case?
This represents the kind of attention that any other dentist (or dental health professional) would have provided within this very same circumstance. For this point to be proved, a qualified medical witness will be summoned. This medical witness is usually an expert in the matter. Their statement is important for setting what would have been the expected treatment and how it differs from the received one.
Then, how exactly has this standard of attention been disregarded, thus hurting the patient.
It is the up to the plaintiff and their lawyer, to proof that the dental health professional either caused or worsened a (negative) health condition. This correlation between the dentist’s actions (or thereof lack of) and the patient’s injury, will be “determined” by the medical witness. Thus, the witness needs to be a proper expert.
So, run a quick evaluation. If the answer for the next 4 questions is yes, go ahead and sue. If not, talk to your lawyer.
- First, was there a duty or an obligation? (from the dental health professional to the patient).
- Then, was this duty not accomplished or fulfilled?
- Next, do you know why it was not accomplished or fulfilled?
- Finally, are there damages or injuries?
Is my injury worth a lawsuit?
Before moving on with an attorney and a lawsuit, you must evaluate how serious your injury really is. Sometimes, even if the injury was the result of negligence or malpractice, it may not be worth to sue. This often happens when the injury is not that serious. Consider the costs in money and time before suing.
Do you have time to sue for dental malpractice lawsuit?
The duration of malpractice cases varies a lot from one to another. It depends on your state, on whether you settle or go to trial, on the case itself, etc. It could last as little as 4 weeks, or as long as 52 weeks. Take this into account before moving along with your process.
How much would it cost me to sue?
If you are willing to sue, but still in doubt due to the costs and expenses of doing so, we are glad to inform you that if you hire a lawyer, there is a huge chance there will be no out of pocket expenses for you. Most of the times, when a lawyer accepts a case, they will be taking care of the costs of suing. This of course, is an investment for them since they are counting on winning (or settling for a good amount) and recovering their money plus their fee. This is called a contingent fee.
Most lawyers that specialize in medical malpractice lawsuits will work with contingent fees. This means that if you win the case, they win back the money put in the case plus a percentage of your compensation. So, if you settle or win your case, first the attorney will take (reimburse) the cost of litigation. Then, out of the remaining, they will charge you the percentage agreed. After taking their percentage, whatever is left is entirely yours. If you lose, they do not get paid: they will not even recover the money they put in the case in the first place. Talk to your lawyer about the contingent fee and the award fee. Most lawyers will charge between 30 and 40% of your compensation. Remember that compensation fees are law regulated, so lawyers cannot charge above a certain amount depending on each state.
However, if you do not hire a lawyer, be prepared for spending at least $20,000 dollars. The cost will go up depending on many factors, the most important of these being the cost of paying witnesses fees (medical witnesses), of getting copies of your medical records and of course, the court filing fees.
The general procedure and steps in a dental malpractice litigation are overly complex to say the least. If a plaintiff decides to go without an attorney, a long and difficult road lays ahead of them. Most defendant attorneys for these cases are prepared to fight the plaintiff until the very end. We recommend working closely with a lawyer in the best interest of your case. You could, at least, have one consultation with an attorney. This will help you clear any doubts and understand exactly where you are standing.
Who can be sued for dental malpractice?
Dentists are the professionals who receive the largest number of dental malpractice lawsuits. However, they are not the only ones who can be sued. Orthodontists, oral and maxillofacial surgeons, periodontists, endodontists, dental assistants and even anesthesiologists can be sued for dental malpractice.
How to sue: Step by step.
Even before going to court, your lawyer must inform you whether you need an affidavit or not. An affidavit is a document prescribed by a (dental) health professional in which they declare the lawsuit is righteous. In some cities or states, presenting an affidavit is mandatory so that the lawsuit can filed. If you have trouble finding someone to prescribe and affidavit, you might want to consider your local board of dentistry. Your lawyer could help you with this.
- The first step is to file a complaint in court. The defendant will the have anything between 20 and 30 days to answer to such complaint.
- Then, each one of the two parts will have to present their documentation. This should include documents such as dental registry, medical records, invoices, prescriptions, and any other document they have.
- After this, is time to bring in the witnesses and their testimonies. A witness is someone who was somehow involved with the process. For example, a dental assistant can be a witness for the defendant part. As for the plaintiff, their personal testimony will be taken. Do not forget the medical witness testimony.
- Most cases get settled out of court. However, if the case cannot be settled and it does not end up getting dismissed, it will go directly to trial.
Documents and their importance.
When a defendant and their lawyers are building their defense, their most important tool is documentation. This is the same for the plaintiff and their team. For example, within a dental registry we should be able to find a complete chronology of a treatment; from diagnosis to steps taken and future plans.
Other examples of documents include a copy of the written consent sheet signed by the patient, medical records (medical history), notes about the treatment, invoices, appointment sheets, etc.
Please note that many people are going to go through these documents, so try to protect and keep them in good shape (use plastic sheet protectors, keep away from water). Any missing sheets, scratches, patches, or suspicious marks within the documents could become a problem.
Should I settle?
After your lawyer gathers all the documents and has the green light from the medical witness; and you have talked about the compensation you are expecting to receive, it is time to prepare the lawsuit (without filing). At this point, there is a strong chance the defendant’s team will approach yours to offer to settle the case. They will offer you a certain amount of money. This means the defendant’s team would “acknowledge” the dentist’s (or professional dental health provider) part in the injury and agree to pay for caused damages. Of course, this amount of money could be smaller than the one you expected to receive in trial, but consider that even if you do win in court, you would still have to pay a large amount in lawyer fees, court fees and others costs you might have incurred. This without even talking about time and how long does it usually take for a lawsuit process to finish.
However, this is not always the case: the settlement could be even better than what you were expecting to receive in court. Also, settlements can be negotiated. If you and your team are being “reasonable” and are willing to talk, you might get a larger sum than what you were offered in first place.
A settlement is always the best option for the defendant. This way they protect their estate as well as their reputation. Finally, a settlement does not mean you get your way. A settlement should rather be perceived as a win-win situation. And, as such, the defendant’s team might have requests or conditions. For example, your settlement might be accompanied by a NDA. Think about the pros and cons while keeping a cool head, you are not obliged to agree to settle.