What are the elements necessary to file a dental malpractice lawsuit?
Dental malpractice, like medical malpractice, is not as infrequent an occurrence as one might expect. It is also not often easy to prove. Dental malpractice is said to occur when a dental patient is harmed by care that is below normal standards. There are a great many areas of care in which dental malpractice can occur, not only in general dentistry, but in oral surgery, orthodontic or periodontic care.
Examples of Dental Malpractice
Dental malpractice may be the result of improper sanitation or:
- Improperly administered sedation or local anesthetic
- Unnecessary or improper tooth extraction
- Failure to supervise actions of employees, such as hygienists
- Failure to diagnose health conditions, like TMJ or oral cancer
- Failure to treat complications, such as infections, properly
- Failure to refer the patient to a needed specialist
- Failure to obtain informed consent before putting a patient through any type of procedure
Necessary Elements of a Dental Malpractice Lawsuit
To successfully sue a dentist for malpractice, the plaintiff has to prove that:
- A dentist-patient relationship existed between the two parties
- The appropriate standard of medical care was breached by the dentist
- The patient was harmed by the inappropriate level of care
It is also up to the patient, hopefully with the assistance of a skilled attorney, to present evidence of the nature and extent of the patient’s injury.
The first element (of a relationship between the dentist and patient) is usually self-evident. However, proving that a dentist deviated from a “medical standard of care” often requires the testimony of a medical expert who has performed the procedure in question.
Furthermore, it is crucial in a dental malpractice case for the plaintiff’s attorney to demonstrate that not only were proper procedures ignored, but that the patient was harmed as a result. Needless to say, if the injury is not sufficiently serious, the plaintiff’s petition may be disregarded as frivolous. Even if the misstep taken by the dentist resulted in some small amount of pain, if the pain was temporary and did not result in permanent damage, there may be no necessity to pursue a lawsuit, or the damages may be such that the cost of prosecuting the case will consume all or nearly all of the recovery. In such a case the patient should not bring their own case in small claims or some other lower court, since costly expert testimony is still required in those courts as well.
Pursuing a Dental Malpractice Suit
In any type of lawsuit, there is always documentation necessary. In some states, an affidavit from a healthcare practitioner stating that the case has merit must be filed before such a lawsuit can be legally filed. It is also helpful, in some states, to have the state board of dentistry provide a favorable review of the case before bringing the claim to court. In all cases, it is important to have a skilled dental malpractice attorney on one’s side to achieve a positive outcome. Most often, with a strong attorney working with you to prove that dental malpractice has taken place, a fair settlement will be reached without ever going to court.