You may be considering a dental malpractice lawsuit or have already consulted with Lance Ehrenberg, Esq. of Dental & Podiatry Malpractice Lawyers of New York about filing one. Either way, you will probably be interested to know the strategies used by defense attorneys to defend dentists against such claims.
Dental malpractice suits, like all medical malpractice cases, are difficult to win. Because Attorney Ehrenberg has well-developed legal skills and long-term experience with dental malpractice negotiation and litigation, he knows which tactics work best against the defenses explained here. This is why he will be an invaluable asset to you in and out of the courtroom.
Why You May Be Pursuing a Dental Malpractice Claim
There are many reasons patients pursue malpractice claims against their dentists. Unless their attorneys are able to prove the following four elements, however, their cases will not be winnable:
- There was an existing dentist and patient were relationship
- There was a breach in the standard of care by the dentist (i.e. the dentist was negligent)
- The dentist caused the patient harm through his/her breach of the standard of care
- The patient’s injury resulted in particular damages (medical expenses, lost income, etc.)
If all of the above facts are proved, the law entitles you to just compensation, whether you suffered one of the following or some other dental, mouth or gum injury:
- Fractured tooth
- Nerve injury
- Unnecessary surgery
- Extraction of the wrong tooth
- Temporomandibular joint disorder (TMJ)
- Improper administration of anesthesia
- Failure to diagnose a serious health condition
Lance Ehrenberg will fight vigorously to win you maximum damages through out of court negotiations or during trial.
Dental Negligence Defenses
It is imperative for your dental malpractice attorney to understand how opposing attorneys are likely to approach your case and it may be helpful for you to understand as well. The three most common defense strategies are:
- Rejecting expert testimony by presenting conflicting expert testimony
- Attempting to reduce or eliminate approximated damages claimed
- Trying to disprove causation (i.e. the connection between your injury and your dentist’s negligence)
The opposing attorney may also argue that your dentist’s care aligned with the expected standard of care and never violated that standard.
Other defenses against charges of dental malpractice include:
In some cases, the defense may argue that your injury would not have occurred if you had followed medication or follow-up care directions, or if you had not failed to inform your dentist that you had a pre-existing medical condition.
Respectable Minority Principle
Sometimes, the defense for dental malpractice will be that, while the dentist used an atypical technique or procedure, he/she did so because of the unusual nature or urgency of your condition.
This theory states that “a respectable minority” of mainstream dentists approve of this technique, so the dentist was correct in using it in spite of the fact that it isn’t in everyday use. Even so, the defense must be able to prove that you were informed of any additional risks prior to giving consent to the procedure.
Good Samaritan Laws
Good Samaritan laws only apply if a dentist (or anyone else) provides care at no cost during an emergency. Though still required not to be reckless, the good Samaritan must meet four elements to be free of liability:
- Obtained your permission for treatment if possible
- Gave appropriate care under the circumstances
- Was not responsible for the existing injury
- Did not have the time to have you treated by your own dentist
Statute of Limitations
In New York, a lawsuit for dental malpractice must be filed within 30 months of the
incident or from the time of discovery. If the negligence occurred during an “ongoing course of treatment,” however, the statutory clock does not start ticking until that course of treatment is completed.