You probably think of doctors when you think of medical malpractice claims, but dentists and orthodontists often can be sued as well when they fail to meet the appropriate standard of care. Situations in which this may happen include when a dentist fails to diagnose a patient with a certain condition, fails to administer anesthesia properly, fails to get informed consent for a procedure, or fails to provide a referral to a surgeon or another specialist. There also may be cases in which a dentist commits errors while extracting teeth or treating infections resulting from a procedure like an extraction. If hygienists or other assistants of a dentist make mistakes that harm a patient, the dentist may be liable for failing to supervise them properly.
Proving Dental Malpractice
Four key elements comprise the core of a dental malpractice claim. The first is the duty of care, which arises from a dentist-patient relationship. Whether or not this relationship exists usually can be easily determined. The patient must demonstrate the appropriate standard of care in the circumstances. This consists of the actions or precautions that a competent dentist would have taken when treating a patient of a similar nature with a similar condition. Unless the malpractice was truly egregious, you will need an expert witness to prove this element. The expert should be familiar with the specific type of procedure that gave rise to the claim.
Examples of Dental Malpractice
Dental malpractice may include actions or inactions such as:
Failing to diagnose the correct condition
Failing to properly treat a condition
Failing to properly perform a procedure
Failing to get informed consent
Failing to refer a patient to a specialist
Failing to properly supervise employees
You also will need your expert to opine on the third and fourth elements of the claim, which are known as breach and causation. A breach is an action (or failure to act) by the dentist that fell short of the standard of care. Causation means that the patient would not have been injured if the dentist had not breached the duty of care. This may involve defeating a dentist’s argument that the injuries resulted from a pre-existing condition or a natural complication of the procedure, of which the patient was warned.
The last element of the claim is damages, which can vary widely depending on the scope of the patient’s harm. If you incurred expensive medical bills to treat the results of the malpractice, you can seek compensation for these losses. More subjective, non-economic types of harm like pain and suffering can also form part of your compensation award, as long as you can prove that they were significant. You should evaluate the scope of your damages before bringing the claim to make sure that it is worth incurring litigation costs.
Procedures in Dental Malpractice Claims
Some states may require that the plaintiff file a claim with the state board of dentistry before pursuing a case in court.
Like other medical malpractice claims, dental malpractice cases tend to be more complex than ordinary personal injury cases. This is because most states require plaintiffs to meet certain procedural requirements, often including an affidavit of merit. In some states, you may need to pursue a claim through the state board of dentistry’s administrative process before filing a case in court. Once the plaintiff has filed a complaint, and the defendant has responded with their answer, the discovery process will begin. This can be critical to the case because it will involve releasing a full set of the patient’s dental records, communications between the dentist and the patient, records of the treatment that the patient needed to deal with the aftermath of the procedure, the specific costs that the patient incurred, and notes of any future treatment that may be needed. Witnesses for each side, both experts and non-experts, can be deposed in preparation for trial.
After discovery, each side should have a strong sense of the strength of their position. This can help promote an appropriate settlement if the plaintiff has a valid claim. Your attorney can advise you on the likely value of your case and take your case to trial if you are not satisfied with the defendant’s settlement offers.