Dental malpractice affects thousands of people each year. According to the American Board of Legal Medicine, 13.1 percent of all professional malpractice claims are filed against dentists. While each state has its own laws governing the duties dentists have to their patients, there is a recurring theme.
Dentists will be held accountable for their actions, and patients who are injured as a result of dental malpractice have the right to pursue legal remedies, including filing a complaint with the state dental board, and filing a dental malpractice lawsuit.
Common forms of dental malpractice include:
- Wrongfully administered anesthesia
- Infections caused by improperly sterilized dental equipment
- Failure to diagnose and treat periodontal disease
- Unwarranted delay in treatment
- Misdiagnosis of a dental condition
- Needless extraction of teeth
What is dental malpractice?
Dental malpractice occurs when a dentist “deviates from the dental standard of care in his community, and as a result of that deviation a patient is injured.” The dental standard of care is “that level of care which competent dentists in the community would have provided to a patient under similar circumstances.”
Example: Mistreated Infection
Sally had tooth pain and went to her dentist, who, after an examination, found a small infected area around one tooth. A competent dentist would take x-rays to locate the infected area, and prescribe antibiotics and pain medication to treat the infection and manage pain.
Instead of taking an x-ray to locate the infection, and then prescribing an antibiotic to treat it, Sally’s dentist decided to extract two teeth in the general area of her pain.
Over the next several weeks the pain became unbearable, and Sally went to see another dentist. X-rays showed the infection had spread, requiring immediate surgical intervention. The severity of the infection required removal of a portion of Sally’s gum, and the extraction of three teeth. Without immediate treatment, the infection would spread to her brain.
The first dentist should have taken x-rays and prescribed an antibiotic and pain medication. His failure to do so was a clear deviation from the dental standard of care in the community. As a result, the dentist committed malpractice.
The deviation from the standard of care is referred to as the dentist’s negligence. Sally’s damages consist of the pain and discomfort she unnecessarily suffered, and the costs of additional emergency treatment.
Filing a complaint with the dental board
If you’ve been the victim of dental malpractice, contact your state’s dental board and register a complaint. If there is sufficient cause to further your claim, an investigator will contact the dentist in writing, stating a complaint has been filed against him.
If the investigator determines your complaint doesn’t warrant further investigation, you’ll receive a letter stating it has been dismissed. The letter should include instructions for appeal.
The dentist will have thirty days to respond to the complaint. After reviewing the dentist’s response, the investigator will determine whether to proceed. If the response proves no malpractice occurred, you will receive a letter stating your complaint has been dismissed. Again, the letter should contain instructions for appeal.
If the investigator believes malpractice occurred, he will schedule a hearing with the state dental board. At the hearing, you will be able to plead your case. You will present your evidence, including copies of x-rays, dental records, and witnesses statements supporting your complaint. You have a right to copies of your dental chart, x-rays, and any other documentation created by all your treating dentists.
The dental board will notify you and the dentist within thirty days after the hearing. At that time, if the board has determined malpractice occurred, the dentist may be ordered to compensate you for costs related to treatment, and/or the dentist’s license may be suspended or revoked.
Having a written finding from the state dental board confirming that your dentist committed malpractice goes a long way to supporting a lawsuit.
Filing a dental malpractice suit
Dental malpractice suits should always be handled by an experienced attorney. It’s virtually impossible to represent yourself in a medical malpractice case. Depositions have to be taken, records subpoenaed, expert witnesses hired, and more. These costs alone can be in the thousands of dollars.
In dental malpractice cases, a lawsuit always has to be filed. Dentists and their insurance companies hardly ever settle malpractice suits. To do so would be an admission of negligence, which could adversely affect their career, and in many cases, their income.
Most dentists have a “right to refuse settlement” clause in their malpractice insurance policies. This means that regardless of how obvious the malpractice may appear, the dentist can refuse to settle the case. This means you will have to go through a hard-fought lawsuit to have any chance of compensation.
To win your dental malpractice suit, you’ll need an attorney with substantial experience in malpractice litigation. Successful malpractice attorneys have the funding necessary to pay for pre-trial depositions, court reporter fees, expert witness, copying costs, etc. Fortunately, they work on a contingency fee basis, so you won’t have to pay any of these costs in advance.
What if I can prove my dentist was negligent, but I wasn’t seriously injured, can I still file a malpractice claim?
Probably not. You must be able to prove that your dentist deviated from the medical standard of care, and as a result, you were seriously harmed. The type of harm plays an important role in determining if a lawsuit is worth pursuing. Just because a dentist was negligent, doesn’t necessarily mean you have the basis of a valid dental malpractice suit.
Example: Overdose of Nitrous Oxide
Sal went to his dentist with a painful toothache. The dentist found a cavity which needed to be filled, and Sal requested nitrous oxide for the procedure. The dentist determined the amount of nitrous oxide needed was about 30 percent of the maximum level. Unfortunately, he mistakenly turned the level up above 50 percent.
While filling the cavity, the dentist noticed Sal was non-responsive, and realized he’d succumbed to the nitrous oxide and was in danger. Sal was revived within a minute with pure oxygen. When he woke up, Sal was in substantial pain and felt nauseous from the nitrous oxide.
Sal left the dentist’s office in pain and quite angry. The next day, he saw another dentist who properly filled the cavity. Sal was convinced he had the basis of a strong dental malpractice suit against the first dentist.
In this case, the dentist committed malpractice. He deviated from the dental standard of care by administering a dangerously high level of nitrous oxide, and his deviation was directly responsible for Sal’s pain and nausea. Sal’s damages consisted of a day’s worth of unnecessary pain, and the costs of treatment from both dentists.
While there’s no doubt dental malpractice occurred, Sal’s damages are relatively minor, although it may not seem that way to Sal. If the dentist hadn’t caught his mistake in time, Sal might have suffered brain damage, or vomited into his mask and suffocated. But the dentist did catch his mistake, no brain damage occurred, and Sal didn’t suffocate.
Finding an attorney to accept Sal’s case would be difficult. Even though malpractice is clear, Sal’s damages aren’t worth going through a lawsuit. It’s possible a jury might award Sal about four or five times the amount of his actual damages, to compensate for his pain and suffering. If the costs of treatment totaled $500, that would amount to no more than $2,500.
You Need an Attorney
If your injuries are serious and you think you may file a lawsuit, having an attorney prepare and file a complaint with the state board of dentistry would be a good idea. You want to be sure your complaint isn’t dismissed. A finding of malpractice by the state board can be crucial to the success of your lawsuit.
If your injuries and costs from the malpractice are minor, you probably won’t be able to find an attorney to accept your case. A minor injury is one which heals in a short period of time with no side effects. Minor costs could be the amount you paid for treatment.
In any event, if you think you’ve been the victim of dental malpractice, your first action should be to seek additional treatment. You have a legal duty to “mitigate” your damages. If you don’t seek immediate treatment and your injuries worsen, you may not be able to get compensation for the worsening of your condition.
Request copies of your dental records. You have a right to copies of your medical charts, x-rays, and any other records in the dentist’s possession. Also, gather records from any other dentists who may have treated you for the effects of the first dentist’s malpractice.
Make appointments with several malpractice attorneys (most won’t charge for an initial office consultation). Bring copies of all your records to each consultation. The attorneys will review the merits of your case, and answer any questions you may have.
Plaintiff Is Unable to Contact Her Dentist
In this dental malpractice claim, the plaintiff alleges her dentist departed from his duty of care to her. He went on vacation while she landed in the hospital with an infected mouth.
How Much is Your Injury Claim Worth?
Find out now with a FREE case review from an attorney…
Visitor Questions on Medical Errors
Search for a Previously Answered Question
A brand new dental bridge broke after 5 months. I went back to the dentist. He did x-rays and told me my teeth were infected and needed to be pulled to be put into a denture. I have proof my teeth were not infected. He provided oral sedation illegally and took all of my teeth,... Read More.
Earlier this year, I learned that my dentist of 40 years had done significant damage to my teeth because he failed to meet the Standard of Care on five different counts. I filed a complaint against him with the Dental Board of California as well as with an attorney. I have an expert witness report... Read More.
In my annual dental check-up, I’ve been told by my dentist that I have a cavity in my n-18 tooth. It shows in the x-rays that there is sufficient gap between the cavity and the root; the dentist told me that it will be a fill, or worst case scenario a partial crown. After drilling... Read More.
On January 31 I went to see the dentist for my biannual cleaning. I was informed that the dentist was available to prepare my teeth for the bridge. (The dental hygienist has been telling me that I need to a bridge.) After shaving my two teeth, the dental hygienist finished the whole process of putting... Read More.
In August 2011, my dentist placed two porcelain covered metal crowns on teeth number 18 and 19. After placement of the crowns, I experienced chronic progressive gingivitis/gum inflammation and gum bleeding around the restorations. This problem was especially apparent when I attempted to floss around those teeth. I had no idea what was wrong until... Read More.
I went in for Invisalign treatment. Into the second month of my treatment the dentist said she has to file my teeth. I agreed, and after my teeth were filed she told me to put on my liners and I went home, without looking in a mirror. When I got home, my friend immediately pointed... Read More.
We have been taking my daughter to a dentist since she first turned 3. They did the normal brushing of the teeth and exam at her first appointment. The dentist wanted to know if I thought she would allow them to do x-rays and I said yes. I said I would like for them to... Read More.
I chipped my tooth and went to the dentist and he said he had to pull it. After it was pulled a lady with a very strong accent explained the options for treatment. I said I wanted something permanent. The dentist said that he would make a temporary bridge. A week later I met with... Read More.
Four days ago, I went to my dentist for my semi-annual cleaning. An assisting dentist from another office (Dentist A) gave me my initial evaluation. He first asked me if I had any concerns, and I told him that my back, upper molar on the left side seemed to be moving. He said it could... Read More.
I went in for a routine root canal. The dentist started and before he drilled made the comment to the assistant, “we need to be careful as we don’t want it to break.” I didn’t think much of it at the time, being under anesthetic, but as he has working, there was a loud SNAP.... Read More.
My daughter had four wisdom teeth extracted. She was sedated and received lidocaine. Half way through the procedure she woke up from the sedation and they had used all of the lidocaine they could. The dentist continued to finish the procedure, pulling two impacted wisdom teeth even though he could no longer provide any sedation... Read More.
I went to a dentist on January 10 of this year with a tooth that had part of a previous filling missing. I was expecting it to be extracted but the dentist said he could put a pulp cap on and refill the tooth, and it could be saved. He drilled the tooth, put a... Read More.
I filed a small claims lawsuit. The judge dismissed my case “without prejudice” so that I could send a letter of intent to litigate (Fl statute 377.106), and in doing so the defendant had 20 days in which to send me my medical records and inform his insurance company. He did neither! I re-filed a... Read More.
I had a root canal done in May last year. The numbing agent wore off a few hours later. It was a Thursday evening. Saturday night at 11:00pm it went numb again. I call the Dentist the following morning, and recounted what happened. He call in a prescription for pain killers and antibiotics. For a... Read More.
Exactly 11 months ago I had a root canal and went back to the dentist many times with pain, but I was told it just takes a long time to heal. I just went to a new dentist and the X-ray shows a broken off metal file in the root, in addition to wads of... Read More.
A dentist, who I had been seeing for over 25 years, botched 6 veneers he placed in on my 6 front teeth – they were way to long and skinny. I told him how unhappy I was and he said the only remedy was to file the veneers off and put a pontic bridge in... Read More.
I had a gum graft in mid October of this year. I had a root that was partially exposed on my left lower bottom tooth and some recession. I went in for my post op and stitches removal one week after. I thought I was going to see the Dentist. I did not, I saw... Read More.
I went to dentist about three years ago for dentures. I was only supposed to have a partial on my lower. They fitted me for the partial and then the day of the surgery pulled the entire bottom out! Since they never made a complete impression on the bottom, I am stuck with ill-fitting dentures.... Read More.
Last year I initially went to Dentist A for an examination of my teeth. Upon inspection he told me my back molar had decay and would need a crown. Doing this was supposed to save the nerve and avoid having to do a root canal. Fast forward to a little over a year, at which... Read More.
My endodontist was extracting two teeth (whether it was necessary is another discussion). He made a bloody mess of the situation, and left me to heal. I saw him a month later because I was in excruciating pain, and found there was a hole through to my sinuses. He performed two procedures over two months,... Read More.
I underwent a root canal and have had a dull aching pain ever since. I told the dentist about it after the procedure, and was told sometimes it takes time for the tooth to die. Eight months later, the pain is still present. On my follow up with the dentist I was told that it... Read More.
I went to an endodontist in 2007 after my dentist determined I needed a root canal on my last lower right side molar, tooth #31. The endodontist drilled a hole through the bottom of my tooth (went further than he should have for the root canal), sealed it up as normal, and didn’t say anything.... Read More.
I went for a smile makeover with a prosthodontist. I paid several thousand dollars up front and throughout the course of treatment. His behavior was anything but ethical. I was harassed by phone calls by him wanting to date me, and I was abused sexually while sedated by the dentist. I acquired herpes 1 and... Read More.
On June 12, I had major dental appointment to remove all old crowns and bridges and replace them with temporaries, and whatever was required to make that happen. I was under IV sedation for 6 hours. I went home very groggy with no written care instructions. On June 13, I returned to the dentist for... Read More.
I had a toothache, but my regular dentist was out due to surgery. She sent me back to the endodontist who had given me a root canal (on tooth #14) approximately 18 months ago. He, too, was out of the office so I saw one of his partners. To treat my toothache, he began a... Read More.
I had a molar pulled some months ago. Now I have a hole from my tooth area to my sinus and it is infected. The dentist said they never heard of this happening before. I have gone in again for a cleaning since that time and they told me to go to an oral surgeon.... Read More.
I took my daughter to a dentist who put cotton swabs on the outside of my daughters mouth during her dental procedures. The chemicals that she drooled out absorbed in the cotton swab, rested on her face for the 45 minute appointment, and resulted in a chemical burn on her face! Is her doctor responsible... Read More.
I had hernia surgery at a hospital on November 11th, 2013. After the surgery I noticed that my front tooth was broken almost in half. I started calling the medical team that was there for my surgery to tell them about my tooth being broke during surgery. I only got one call back from a... Read More.
About 10 years ago I had a root canal done. This tooth has been bothering me ever since with pain and discomfort. My new dentist sent me to see an endodontist today and they found that a file had been left in my canal! Now I need to have a procedure done called an Apicoectomy... Read More.
My dentist insisted on replacing a filling in a tooth that was asymptomatic. The tooth began to hurt soon after the procedure. I went back to the dentist who took an X-ray and said the procedure was not carried out properly. The dentist apologized and redid the filling, drilling an even bigger hole in the... Read More.
My son went to the dentist for a filling and was given so much nitrous oxide that his eyes were unable to focus and he couldn’t respond to me. I asked the dental assistant why he couldn’t respond. She turned down the nitrous oxide and got the dentist, who immediately turned OFF the nitrous oxide... Read More.
I just had a cleaning at my dentist’s office. After my dentist checked my teeth he kept falling asleep in the chair while we were discussing my treatment plan! He wasn’t answering my questions and when he did speak he made no sense. This seemed like totally negligent behavior to me and maybe like he... Read More.
My anesthesiologist broke two front teeth during surgery and never told me he broke my teeth. A family member told me when they came in to see me in the recovery room. I had bonding put on my front teeth after surgery. I had to keep going back to the dentist because the teeth just... Read More.
My dentist overcharged me for work done on my son, daughter and myself. Instead of repaying me the amount I overpaid, he decided without my consent to do extra work on my son. He didn’t inform me when he did this and also collected money from my insurance. Also, after I paid him $820 to... Read More.
I went to the dentist about 3 years ago to get a root canal. The dentist did the work and filled the tooth. Ever since the procedure I’ve had horrible pain in my tooth and jaw. The dentist said the pain is normal. My fear of going to a dentist again was high but today... Read More.
A friend of mine went to a dentist to have all her top teeth extracted and a plate put in. She has had a lot of problems since the procedure. The dentist broke off or ground down all those teeth, leaving the roots intact. It has been very painful for her. That dentist soon left... Read More.
When I was 16 I had a root canal done. When I was 20 I had my tooth pulled. At 25 my dentist said I could have an implant put in because my bones had stopped shifting. He was going to do the implant but then he had 2 strokes. He then had to call... Read More.
My daughter went to a pediatric dentist for two fillings. (They used “laughing gas” on her to perform the procedure.) They filled the wrong tooth and she had to return a week later to fill the correct tooth. They sent me a bill for the gas used in her procedure, which I stupidly paid. Now... Read More.
My dentist broke my jaw while cleaning my teeth. They also pulled my wisdom teeth without my consent. How much do you think I can get and if I hired a lawyer how much they would get paid out of the settlement? Thanks. Read More.