Filing a Dental Malpractice Suit for Injury Compensation



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.

Legal Remedies

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.

Case Study

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.

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