Dental Malpractice Lawsuits

Dentists and other oral health care professionals can be liable for malpractice, but injured patients are likely in for a challenge or two.

Updated by , J.D., University of San Francisco School of Law

Just as physicians and surgeons can be held liable for treatment mistakes that cause harm to patients, so can dentists. But as with other forms of medical malpractice, not every unexpected or undesirable dental care outcome means the patient has a legal right to compensation. Here's what to know at the outset:

  • Dental malpractice incidents make up a consistent share of all medical malpractice occurrences. Out of around 9,000 malpractice-related payments made by health care providers (and their insurers) in 2021, data shows that just under 1,000 were made by dental health professionals.
  • Proving dentist malpractice can be challenging, and bringing this kind of lawsuit to court often means jumping through a procedural hoop or two.
  • The help of an experienced dental malpractice lawyer is often crucial to getting a fair result in these kinds of injury claims.

What Is Dental Malpractice?

Dental malpractice occurs when a dental health care professional (including a dentist, hygienist, orthodontist, or oral surgeon):

  • provides sub-standard care to a patient, and
  • the patient suffers an injury or some other kind of harm as a result.

What Are Some Examples of Dental Malpractice?

Some of the most common dental malpractice scenarios include:

  • improper tooth extraction of teeth
  • failure to diagnose a dental health condition, like temporomandibular joint (TMJ) dysfunction, or oral cancer
  • failure to properly treat complications of care (including infection)
  • failure to properly supervise or oversee actions of employees (such as hygienists)
  • improperly administered anesthesia
  • failure to refer to a specialist, and
  • lack of informed consent.

Proving Dental Malpractice

In order to make a successful case for dental malpractice, an injured patient (and their attorney) will typically need to establish:

  • the existence of a dentist-patient relationship
  • the appropriate medical standard of care that the dental professional should have acted with under the circumstances
  • exactly how the dentist "breached" that standard of care, meaning how the treatment provided didn't measure up to the standard, and
  • the nature and extent of the patient's resulting harm.

The first element (existence of a dentist-patient relationship) isn't typically in dispute. Instead, most dental malpractice cases are won or lost somewhere in the interplay of the second and third elements:

  • Establishing the "medical standard of care" means showing the level 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 experience with the kind of procedure that's the subject of the lawsuit.
  • Proving a "breach" of the standard of care means detailing exactly how the dental professional caused the injury or made an existing condition worse by their action (or inaction). What steps should the dentist have taken in treating the patient? What steps were actually taken? Again, testimony from a qualified expert is critical to establishing causation.

Finally, it's important to consider the seriousness of the patient's "injury" before filing a lawsuit. If the harm is minor (such as temporary tooth pain or jaw discomfort), then, even if it was caused by a treatment mistake, it might not be worth the time and effort of making a dental malpractice claim.

Damages in a Dental Malpractice Case

In the language of personal injury law, the term "damages" refers to the entire spectrum of the injured claimant's harm. In a dental malpractice case, damages can include:

  • the cost of additional dental care that's necessary to correct the treatment mistake
  • time missed at work, lost income opportunities, and other financial losses resulting from the mistake and the additional care needed to treat/correct it, and
  • the dental patient's mental and physical "pain and suffering" resulting from the dental health professional's error, including how the mistake impacted the patient's life.

Learn more about damages in medical malpractice cases.

Not surprisingly, an injured patient's damages go a long way toward determining the potential value of their case.

Steps to File a Dental Malpractice Lawsuit

Unlike most kinds of injury cases, when you bring a dental malpractice lawsuit (or any kind of medical malpractice claim) to court, you might need to take one or two additional steps. The specific procedure you'll need to follow will be dictated by your state's medical malpractice laws. But:

  • 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.
  • In other states, you may need to get a favorable ruling from the state board of dentistry before bringing a claim.
  • Still elsewhere, you might need to give the dental health professional notice of your intent to file a malpractice lawsuit.

An attorney will be familiar with the procedural requirements for bringing a dental malpractice case to court in your state.

The lawsuit officially begins once a pleading (or "complaint") has been filed with the court, after or alongside the affidavit of merit or any other necessary pre-lawsuit filings.

The defendant dentist then has a certain amount of time to respond to the complaint (typically 20 to 30 days).

Dental Malpractice Settlements and Amounts

Most injury-related cases are much more likely to end in an out-of-court settlement than proceed all the way to trial. That's true of medical (and dental) malpractice cases too, but these are also some of the most difficult kinds for injured claimants to "win" in terms of receiving a fair settlement.

A medical malpractice article on one of our sister sites illustrates this difficulty:

  • only 12 percent of medical malpractice survey respondents received any kind of payout (whether a settlement or court award)
  • 80 to 90 percent of medical malpractice claims were dropped or dismissed without the patient receiving compensation in a single study year, according to the U.S. National Institutes of Health.

Learn more about settling an injury case.

What's the Average Dental Malpractice Settlement?

This is a common question on the minds of many injury claimants. But even if there were reliable, readily available data on the outcomes of dental malpractice lawsuits, that kind of information wouldn't offer much help in figuring out the value of your individual case.

The value of an injury claim is extremely case-specific, and the more reliable predictors come from key aspects of your own potential dental malpractice situation, namely:

  • the obviousness or egregiousness of the dental health professional's mistake, and
  • the severity of the injury caused by the dental malpractice.

Do I Need to Hire a Dental Malpractice Lawyer?

Yes. It's not the case with every type of injury-related legal claim, but when you decide to sue a health care professional for malpractice, you need an experienced legal professional on your side. Dental malpractice cases are tough to win. They require:

  • thorough analysis of medical records
  • effective proof of the "fault" element (showing how the dental hear care professional's conduct fell short of accepted treatment standards), and
  • careful presentation of how the patient was harmed.

As we've touched on above, even an experienced lawyer often needs to turn to other professionals for help with a medical malpractice case. That means relying on a network of medical expert witnesses and consultants to help build the best case for their client.

On top of all that, health care professionals of all kinds (and their liability insurers) tend to dig in and fight when a patient claims malpractice, and dental health professionals are no exception.

There's no substitute for a legal professional's experience and expertise (plus their willingness to battle it out) when you're considering suing a dentist for malpractice. At the same time, if you run your situation past several different lawyers and they all turn down the chance to represent you, it might be time to reconsider whether it's worth the significant time and effort it takes to pursue a dental malpractice case.

Your best first step might be reaching out to an experienced dental malpractice lawyer. You can use the features on this page to connect with an injury lawyer in your area.

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