Dental Malpractice Lawsuits

Dental malpractice can occur when a dental patient is harmed through the provision of sub-standard care. Just as doctors can be held liable for medical negligence, so can dentists (as well as oral surgeons and orthodontists). In this article, we'll take a look at what a plaintiff needs to prove in a dental malpractice claim and the steps that might be necessary in order to bring a dental malpractice lawsuit to court. We’ll also look at the various ways that a dentist can try to defend against a malpractice claim.

Elements of a Dental Malpractice Lawsuit

In order to make a successful case for dental malpractice, an injured patient (and his or her attorney) will typically need to establish the following:

  • the existence of a dentist-patient relationship
  • the appropriate medical standard of care under the circumstances
  • how that standard of care was breached, causing harm to the patient, and
  • the nature and extent of the patient's injury.

The first element -- whether there was a dentist-patient relationship -- is typically not disputed.

The second element, the "medical standard of care," means the level and kind of care that a similarly-skilled dentist in the community would have provided under the same treatment circumstances. This is almost always established by a qualified expert medical witness who has been retained by the plaintiff's attorney. This expert is usually a health care professional who has experience with the kind of procedure that is the subject of the lawsuit. So, if you're suing your dentist over complications from a tooth extraction, the expert witness would be a dentist who has performed this procedure in the past.

The "breach" and "causation" elements are critical. A plaintiff must prove that the health care provider caused the injury or made an existing condition worse by his or her action (or inaction). Again, testimony from a qualified expert medical witness is critical to establishing causation. What steps should the dentist have taken in treating the patient? What steps were actually taken? How did those steps cause or contribute to the patient's harm?

Finally, it is important to consider the seriousness of the “injury” before filing a lawsuit. If the injury is minor (such as temporary pain and discomfort), then, even if it was caused by malpractice, it may not be worth the time and expense of a lawsuit.

Steps to File a Dental Malpractice Lawsuit

In some states, it may be necessary to obtain an affidavit from a health care practitioner saying that the lawsuit has merit before the lawsuit can be filed. It is also beneficial, in some states, to have a favorable ruling from the state board of dentistry before bringing a claim. An attorney will be familiar with any and all procedural requirements that must be met in order to bring your case to court.

The lawsuit officially begins once a pleading (or “complaint”) has been filed with the court. The defendant dentist then has a certain amount of time to respond to the complaint (typically 20 to 30 days).

The parties then exchange discovery, which includes documentation such as the patient’s dental records, records of any subsequent treatment, and evidence of the treatment costs incurred by the plaintiff and/or his or her dental insurer.

Discovery also includes testimony from the plaintiff, the defendant, and any other fact witnesses (e.g., employees in the dentist’s office, and prior or subsequent treating dentists). Expert testimony is also taken. Expert witnesses can be dentists who evaluate the patient's records, or experts who testify about the financial harm the plaintiff suffered as a result of the sub-standard care.

If the case does not settle out of court (the majority of cases do end up settling), and is not dismissed by the court, then it will proceed to trial.

Examples of Dental Malpractice

Some of the more common scenarios of dental malpractice include:

  • improper extraction of teeth
  • failure to diagnose various conditions (e.g., TMJ, oral cancer)
  • failure to properly treat complications of care (e.g., infection)
  • failure to properly supervise or oversee actions of employees (e.g., hygienists)
  • wrongfully administered anesthesia
  • failure to refer to a specialist, and
  • lack of informed consent.

Defending Against a Dental Malpractice Lawsuit

One of the most important defenses in a dental malpractice case is proper documentation. The patient’s dental record must contain a clear chronology of events, future treatment plans, and all important communication between the dentist and patient. Comprehensive documentation also includes:

  • a copy of the written informed consent for any procedures that were done
  • a clear record of the patient’s history
  • a clear treatment plan (including documentation explaining the reason for any treatment for which the patient has been billed), and
  • notes written at or near the time of the patient's treatment.

Keep in mind that many people will examine the dental record if there is a lawsuit. Missing pages, inconsistencies, or unclear documentation will be problematic for the defense.

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