Negligence is the failure to act in a reasonable way. The term “reasonable” describes an ordinary prudence person, or what is most common or appropriate to the general population. While negligence usually indicates a person acted unreasonably, it can also encompass the failure to act when there is a duty to do so.
Dental Negligence, therefore, is when a dental professional causes harm to a patient during a standard procedure. It is dental negligence because this harm could be avoided if the dentist, orthodontist, oral surgeon, or any other employee in the dental office took the appropriate care and measures during the patients’ visit. Dental negligence can lead to serious injuries which may require additional care, as well as legal action.
What are Some Examples of Dental Negligence?
Medical malpractice is often referenced when a person’s surgery or diagnosis is administered incorrectly. Dental negligence is also referred to as dental malpractice. Dental malpractice is not as common as medical malpractice, but occasionally it will occur. Below are a few examples of dental negligence:
- The wrong procedure is performed on the patient;
- Irreparable damage to a patient, their teeth, or their gums;
- Post-procedure infection;
- Failure to diagnose an illness, such as cancer or other diseases;
- Failure to supervisor other employees, such as hygienists;
- Failure to gain informed consent, this includes withholding information such as fatality rates that would sway the decision of a patent; and
- Wrongful death.
Dental negligence or malpractice can also include various other forms of misconduct or violations.
What is the Standard of Care in Dental Negligence Cases?
In a legal matter, everyone is expected to act with ordinary care. This is to say, each person must demonstrate the same degree of care that a reasonable prudent person would under the same circumstances. This is also known as the “standard of care” and is the standard measurement in every negligence case.
As an exception to ordinary or reasonable care, the standard of care is much higher for professionals, such as dentists. This is because the standard isn’t an example of an ordinary person but to other professionals in a similar field. For example, if Dr. X, a dentist, is being sued for dental negligence the jury would not compare Dr. X to an ordinary person and other dentists and their practices.
Dentists are held to a professional standard of care. Professionals have a higher standard than an ordinary person because they have to exercise a particular level of care, attention, and skill prescribed in the code of their profession. The standard of care is based on education and training. When a dentist breaches the standard of care, there is a negligence case at hand.
What Do I Have to Prove in a Lawsuit against a Dentist?
To be successful in a case against a dentist for dental negligence, a patient must prove the following four elements:
- Duty – Duty is what is owed to another person. A patient must show that a dentist had a duty to give them a higher standard of care. In dental negligence, this is easy to prove by the nature of the patient/dentist relationship.
- Breach – The element of breach is established when the patient proves the dentist failed to act with the appropriate standard of care that another dentist would have acted with. For example, Dr. X breaches his duty when he used a rusty tool to clean the patient’s gums when any other dentist would use clean, sterile tools.
- Causation – Causation is the most important element to a negligence claim and can be broken down into two sub-elements. First, actual cause is the dentist’s breach of duty actually caused the injury or damage to the patient. For example, Dr. X used a rusty tool that actually caused the patient’s infection. Second, proximate cause is measured by the “but for” test. But for Dr. X using a rusty tool, the patient would not have gotten an infection.
- Damages – Damages or injury must occur for there to be a claim of denial negligence. For example, Dr. X used a rusty tool to clean the patient’s gums, but no infection occurred. While this is not reasonable behavior, there is no claim for negligence because there was no injury.
A dental negligence lawyer will succeed in a dental negligence claim if they can prove that Dr. X had a duty to act with a higher standard of care based on his education and training when cleaning the patient’s teeth. He breached that standard of care when he used the rusty tool that actually caused the patient to suffer a painful infection and accrue medical bills for treatment. But for using that rusty tool, the patient would not have suffered an injury.
Proof in dental negligence compensation claims typically come from evidence of medical records, bills, or practice procedures of the dentist in question to prove injury actually occurred from the negligence of that dentist.
What Types of Recovery are Available in Dental Negligence Cases?
Dental negligence injuries can be divided between economic damages and non-economic damages.
When a patient suffers monetary loss caused by dental negligence, the dentist may have to cover economic damages such as:
- Past medical bills;
- Future medical bills;
- Loss wages if the patient missed work for the injury;
- Loss of future wages and earning capacity if the patient can no longer work due to the injury.
A patient can also be compensated for the injury itself, and the dentist may have to pay for non-economic damages such as:
- Pain and suffering;
- Emotional distress;
- Loss of enjoyment of life
The amount and availability of damages depends on many factors, including the extent of the injury, as well as state laws.
What Defenses Can a Dental Professional Raise?
A dentist, or other dental professionals, may raise the following defenses:
- Contributory negligence – Contributory negligence can be raised if the dentist can prove a patient acted unreasonably. This suggests the patient contributed to the injury. For example, after the patient’s teeth cleaning, they were supposed to take antibiotics but failed to do so. This is an all or nothing defense. If the dentist succeeds, the plaintiff cannot recover anything.
- Comparative negligence – Comparative negligence is similar to contributory negligence. However, damages can be split based on a percentage term. For example, Dr. X was negligent in using a rusty tool in cleaning the patient’s teeth. Still, the injury would not have been as severe if the patient had taken the antibiotics. The court could find that Dr. X was only 60% negligent, and the patient would only be able to recover for 60% of damages.
- Statute of limitations – There is a statute of limitations in dental negligence that states a claim must be brought in a certain amount of time if a patient wishes to recover from it. This varies from state to state.
Do I Need an Attorney for Help with a Dental Negligence Lawsuit?
If a dentist or another dental professional has injured you, you may claim dental negligence. A personal injury lawyer with experience in dental negligence can assist you with your case. A dental lawsuit attorney can explain your case’s value, what types of recovery are available, and evaluate your case based on specific facts.