Unlike traditional medical malpractice suits, which usually arise from botched surgery or the administration of harmful medications, most injuries which occur as a result of dental malpractice can easily be corrected. As a result, dental injuries are usually not substantial enough to be worth filing a lawsuit. However, an injured patient should always contact an attorney for advice since the legal concepts can be difficult to understand.
What Do I Have to Prove in a Lawsuit against a Dentist?
When suing a dentist for medical malpractice, the injured party (the plaintiff) must prove the following in order to be successful in a lawsuit against the dentist (the defendant):
- Duty: The dentist must owe a duty to you. This basically means that the person suing is a patient of the dentist.
- Standard of Care: The first step in a lawsuit against a dentist is proving that the injured patient must prove that the dentist acted below the applicable standard of care. This means that a dentist must act in a way other dentists would act under similar circumstance, who have basically the same education and knowledge, have a similar type of practice and practice in a similar geographical area. Unfortunately, this first test can be difficult to prove because it generally can only be established through expert testimony (e.g. another dentist testifying that the dentist who injured the plaintiff acted below the standard).
- Causation: The second step in a lawsuit against a dentist is establishing the negligent act was the cause of injury. For example, the dentist may argue that the injury was something the patient would have sustained even if the dentist was not negligent or the patient should have reasonably expected the pain from the procedure. Therefore, the dentist may successfully defend the case because they actually did not cause the harm or, even if they caused it, they did not made it any worse than it would have been anyway. Even if the plaintiff can show that the dentist made a mistake, they still may not win unless they can prove there was additional harm caused by the mistake.
- Damages: The third step is proving that you actually incurred some type of damage. This could mean having to pay for additional dental services to fix the mistake or missed time from work because of the injury. Damages usually come in the form of some type of monetary loss. However, damages can also be physical (nerve damage, broken teeth) or emotional (embarrassment because from a lifetime of missing teeth if not corrected).
What Are Some Reasons to Sue a Dentist?
Dentists may be sued for a variety of incidents resulting in injury from dental work. Examples include, but are not limited to:
- Failure to detect or diagnose periodontal diseases
- Failure to properly examine a patient for certain dental disorders
- Exceeding the scope of consent for treatment
- Improper use of dental instruments
- Improper administration of anesthesia
- Improper or unnecessary treatment
- Severe nerve damage to face, lips, jaw, or tongue
- Severe oral infects
- Unnecessary surgery
When Lawsuits Are Difficult to Win?
Dentists can sometimes put forth successful dental malpractice defenses in a lawsuit. It may be difficult to sue a dentist for the following injuries:
Pulling the wrong tooth: Depends. Although pain is experienced, it is usually not enough of an injury to sue for. This is because the injury can usually be easily corrected. For example, the dentist could provide the patient with two implants free of charge. Additionally, if the dentist actually believed they pulled out a tooth that was causing your pain and then later determined that the tooth was not the cause of the pain, a patient may only sue if the dentist should have known it was the wrong tooth.
"Doing bad work": Again, this depends. Expert testimony will be required to determine whether this is just the patient’s opinion, whether that opinion is reasonable and whether the dentist’s conduct fell below the standard of care. Also, the court will consider whether the injury can be easily corrected.
Should I Seek the Advice of a Lawyer?
If you suspect that your dentist committed dental malpractice and you want to sue for your injuries, it is important to speak with a personal injury attorney as soon as possible. This is because there are time limits for bringing a lawsuit, which varies by state (known as a statute of limitations). For example, generally an injured patient must file within five years of the last date of service or within three years of the date of discovering the injury.
A lawyer can order your dental records and have an expert look them over to determine if there is enough evidence to potentially win a case. Most personal injury lawyers will also take these cases on a contingency basis, meaning you only have to pay if you win the case and that payment is taken out of your winnings.