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Dental malpractice is more common than most people think. Similar to medical malpractice, dental malpractice occurs when patients suffer from injury or harm because of sub-standard care from the dental practitioner.
Dental malpractice is a consequence of dental negligence on the part of the dental practitioner. Any form of negligence or sub-standard care can constitute as dental negligence. Dental product liability claims also fall under dental malpractice.
This type of lawsuit falls under the law of malpractice. Patients who intend to file a lawsuit against any dentist or dental practice must prove that the injury is not short term and was due to the action or lack of action by the practitioner.
In order to be successful in a dental malpractice lawsuit, the injured patient and his or her attorney must have four elements present: (1) the existence of a dentist-patient relationship; (2) the appropriate medical standard of care under the circumstances; (3) causation or how the standard of care was breached, resulting in the injury of the patient; and (4) the nature and extent of the patient’s injury.
Additionally, patients who intend to file complaints in court against a dental practitioner can benefit from a favorable decision from a state board of dentistry before the lawsuit is filed. In most cases, expert witnesses are needed to testify during the discovery process of the lawsuit.
The expert witness must be able to establish the standard of care given the circumstances, establish how the defendant’s treatment was of sub-standard care, and establish how the dental practitioner’s sub-standard care caused harm to the patient.
Some states may require plaintiffs to obtain an affidavit from a health care practitioner, detailing that the lawsuit has merit, before the lawsuit can actually be filed.
Before filing a lawsuit, patients must first consider the gravity of their injury. Minor injuries such as temporary or short-term pain and discomfort might not be worth the cost and trouble of a lawsuit, even if it was due to malpractice.
It is also important to note that while several dental malpractice lawsuits are filed each year, most of them do not make it to trial simply because majority of these cases are settled before it even reaches trial in court.
What is Dental Malpractice?
Just like medical malpractice, dental malpractice can happen when a patient suffers injury or harm due to sub-standard care from the dental practitioner.
Dental malpractice occurs when a patient receives an injury due to negligence on the part of the dentist or dental practitioner. Any form of negligence or poor quality of care in dentistry can be defined as dentist malpractice.
Failure to diagnose, failure to treat conditions, delayed diagnosis or treatment of an oral disease or other perilous oral conditions, and any intentional misconduct on the dental professional’s part can constitute as dental malpractice.
Dental malpractice cases typically fall under the law of malpractice. Similar to medical malpractice claims, patients who wish to file a dental malpractice lawsuit will need to prove that the injury is not short-term pain.
The dentist’s malpractice insurance can make a settlement: (1) if a patient is required to undergo costly surgery to correct what another dentist incurred, (2) if a patient lost a significant amount of work, or (3) if a patient suffered loss of sensation or disfigurement in addition to pain and suffering.
In some cases, dental practitioners may try to financially benefit from a patient by diagnosing an unnecessary condition and subsequently performing treatment. This situation can also constitute as dental malpractice.
Additionally, dental product liability claims including silicone implants and dental laser and legal malpractice claims based on dental malpractice can also be included in dental malpractice lawsuits.
Situations of malpractice include:
- Improper extraction of teeth
- Failure to diagnose various conditions (e.g. TMJ, oral cancer)
- Failure to properly treat complications of care (e.g. infections)
- Failure to properly supervise the actions of its employees
- Wrongfully administered anesthesia
- Failure to refer to a specialist
- Lack of informed consent
- Nerve injuries that affect a patient’s ability to taste and/or cause permanent numbness to the nerves in the tongue, jaw, chin, and lips, including lingual nerve injury and inferior alveolar nerve damage
- Permanent or temporary numbness or loss of taste
- Permanent or temporary structural injuries to the tongue, jaw, chin, or lips
- Temporo Mandibular Joint disorders
- Wrongful death from dental procedures or oral surgery
- Complication from negligently completed crowns and bridges
- Failure to take into account the patient’s relevant medical history
- Certain complications from anesthesia, regardless of signed releases
- Molestation of a sedated patient
- Treatment surpassing the scope of informed consent
- Complications from dental work which was done in earlier months
Elements of Dentist Malpractice
To succeed in a dental malpractice lawsuit, an injured patient, along with the attorney, will need to establish the following elements:
- The existence of a dentist-patient relationship
- The appropriate medical standard of care under the circumstances
- How the standard of care was breached, thus causing harm to the patient
- The nature and extent of the patient’s injury
According to Wikipedia, the legal term of standard of care refers to:
“The level at which an ordinary, prudent professional with the same training and experience in good standing in a same or similar community would practice under the same or similar circumstances. An ‘average’ standard would not apply because in that case at least half of any group of practitioners would not qualify. The medical malpractice plaintiff must establish the appropriate standard of care and demonstrate that the standard of care has been breached, with expert testimony.”
Thus, the second element will only be established if the dental practitioner in question delivered a sub-standard care to the patient in comparison to how other dental practitioners carrying the same skill would have delivered.
The third element – breach and causation — is crucial in a dental malpractice lawsuit. A plaintiff must be able to prove how the dental practitioner caused the injury, or made a pre-existing condition poorer by the dental practitioner’s actions or lack of.
The expert witness must: (1) establish the standard of care; (2) testify how the treatment made was below the standard of care; and (3) testify how the dental practitioner harmed the patient through the sub-standard care.
Finally, patients who wish to file dental malpractice lawsuits must consider the gravity of their sustained injuries prior to actually filing the suit. Minor injuries like temporary pain and discomfort even if it was caused by malpractice, might not be worth the costs and trouble of a lawsuit.
Some states may require plaintiffs to secure an affidavit from a health care practitioner stating that the lawsuit has merit, before the lawsuit can actually be filed. Additionally, it could also be beneficial to have a favorable decision from a state board of dentistry before a claim is filed.
Lawsuits begin only when a pleading or a complaint has been filed in court. The defendant – the dental practitioner – must then respond to the complaint in a timely manner, which is typically between 20 to 30 days.
The discovery process will then follow, where both the defendant and the plaintiff will have to present to the court documentation such as the patient’s dental records, records of any subsequent treatment, and evidence of the treatment costs incurred on the part of the plaintiff or the dental insurer.
It is also during the discovery period where testimonies from the plaintiff, the defendant, the expert witness and other witnesses (e.g. employee’s in the dentist’s office, and prior or succeeding treating dentists) are given.
The complaint will only go to trial if the case is not settled outside of the court, or if the court does not dismiss the complaint after the discovery process. However, majority of dental malpractice lawsuits come to a settlement agreement.
In 2011, the Supreme Judicial Court of Massachusetts sustained the suspension of the license of a dentist named Stephen Chadwick “who failed to conduct and record weekly spore testing, which is a method of sterilizing dental instruments.”
According to the document:
“In its decision, the board found that Chadwick failed to comply with Occupational Safety and Health Administration (OSHA) standards; Centers for Disease Control and Prevention (CDC) guidelines, and Department of Public Health (department) regulations ‘with respect to spore testing, annual office training, the proper handling and disposal of medical waste, proper maintenance and disposal of sharps [i.e., sharp items, such as needles, scalers, burs, laboratory knives, and wires], the maintenance of complete and accurate records with respect to hepatitis B inoculations, and basic exposure control protocols.’ The board concluded that this conduct ‘constitute[d] deceit, malpractice and gross misconduct in the practice of the profession in violation of G.L.C. 112, § 61,’ and ‘seriously undermine[d] the integrity of the profession of dentistry and the public’s confidence in the practice of dentistry.’ It suspended Chadwick’s license to practice dentistry in Massachusetts for six months and imposed a five-year probationary period to follow the suspension.”
In February 2013, singer LeAnn Rimes filed a lawsuit for dental malpractice. Rimes underwent “nine root canals, a tooth extraction, bone grafting and a variety of other dental unpleasantries” over the course of three years.
As per Lawyers.com:
“According to the suit, [Dr. Duane] McKay told Rimes that restoring her smile with eight upper front veneers would not only improve her appearance, it would also correct her chronic jaw pain. After the procedure, Rimes found the ‘veneers were not fabricated to her satisfaction due to poor shape, size and color,’ so McKay removed them and replaced them with permanent crowns.
“Plan B yielded even less satisfactory results, such as ‘severe tooth pain, gum inflammation and chronic gum bleeding.’ The suit alleges that Rimes’ teeth were over-prepared and her crowns were placed too far below the gum line, mistakes that would lead to ‘significant bone loss’ and the potential for a ‘permanent cosmetic deficiency.’
“The ordeal already sounds like a wince-inducing country song, but it gets worse. The faulty crowns aggravated Rimes’ chronic jaw pain, for which she’s still undergoing physical therapy [at the time of writing]. And the pain meds the dentist prescribed made her throw up.”
Studies, Statistics and Reports
- According to the National Practitioner Data Bank, one out of every seven medical malpractice cases in 2006 involved a dental professional.
- A 2009 study published in Anesthesiology Journal states that one out of 100,000 patients who receive general anesthesia may die from it.
- Dental malpractice is most common in the field of Prosthodontics, it comprises 28 percent of all dental malpractice claims.
- 17 percent of all dental malpractice claims involve the practice of Endodontics, a field in dentistry that works inside the teeth, dealing with the pulp and root of the tooth. It also includes root canal procedures.
- Restorative dentistry accounts for 16 percent of dental malpractice claims.
- In a 2012 Medical Malpractice Annual Report by the Office of the Insurance Commissioner, 369 dental groups or practices faced lawsuits for malpractice.
- According to statistics from the National Practitioner Data Bank, US DHHS, in 2003, 112 medical malpractice claims were filed against dentists. This accounts for five percent of the general dentists malpractice lawsuit statistics.
- Based on the National Practitioner Data Bank 2003 Annual Report, 16.74 percent of dental malpractice lawsuits were filed in California, with an actual figure of 375 suits.
- The National Practitioner Data Bank 2003 Annual Report also stated that 70 medical malpractice claims filed against dentists were in New Jersey, which accounts for 3.1 percent of all dentist malpractice lawsuits across the United States.
- 3 percent of all medical malpractice payment reports across the United States were from 433 dentists who faced malpractice lawsuits.
- 8 percent of nationwide dental malpractice lawsuits were filed in Texas, with an exact number of 64, according to the 2003 statistics from the National Practitioner Data Bank.
Dеntаl mаlрrасtісе іѕ mеdісаl mаlрrасtісе. For ѕоmе unknоwn rеаѕоn, a lot оf реорlе dо not think of a dеntіѕt аѕ a medical provider, but they are. Their focus іѕ on рrоvіdіng good health bу tаkіng care of раtіеntѕ’ tееth and trеаtіng gum and jаw disorders.
Hоwеvеr, thе fасt thаt dеntіѕt аrе medical рrоvіdеrѕ doesn’t аnѕwеr the ԛuеѕtіоn “аrе dentist mіѕtаkеѕ medical mаlрrасtісе?”. Thе truе answer is that dеntіѕt mistakes mау or may nоt bе medical malpractice.
Fіrѕt, juѕt because there wаѕ a bаd rеѕult dоеѕn’t mean that the dеntіѕt did ѕоmеthіng wrong. It is роѕѕіblе thаt thе dentist dіd everything right, but for ѕоmе rеаѕоn thе results wеrе nоt what was еxресtеd аnd аntісіраtеd.
Sесоnd, еvеn if thе dеntіѕt made a mіѕtаkе, іt doesn’t nесеѕѕаrіlу mеаn thаt thеrе wаѕ dеntаl malpractice оr mеdісаl malpractice. In our lеgаl ѕуѕtеm, fоr a dеntіѕt tо bе lіаblе fоr a раtіеnt’ѕ іnjurіеѕ, a раtіеnt must prove four elements оr facts.
- Thе раtіеnt muѕt ѕhоw that a dеntіѕt hаѕ a duty to provide thе ѕаmе саrе as a rеаѕоnаblу рrudеnt dеntіѕt wоuld have provided in thе same сіrсumѕtаnсеѕ. While іt іѕ ассерtеd thаt the dentist hаѕ a dutу tоwаrd hіѕ/hеr раtіеntѕ, thіѕ еlеmеnt оr fасt is also рrоvеn bу showing whаt a rеаѕоnаblу prudent dеntіѕt wоuld hаvе dоnе іn thе ѕаmе сіrсumѕtаnсе.
- Thе раtіеnt must show thаt thе dеntіѕt brеасhеd hіѕ/hеr dutу tо the раtіеnt bу nоt dоіng whаt a rеаѕоnаblу prudent dеntіѕt wоuld have done in a similar circumstance. Thіѕ еlеmеnt or fact іѕ рrоvеn bу ѕhоwіng whаt the dеntіѕt асtuаllу dіd or dіdn’t do аnd соmраrіng іt to what ѕhоuld have bееn dоnе.
- Thе patient muѕt ѕhоw thаt the асtіоn or fаіlurе оf action оf the dеntіѕt саuѕеd thе іnjurу thаt thе patient suffered. Notice thаt thе injury could bе саuѕе bу whаt thе dеntіѕt dіd dо, ѕuсh аѕ еxtrасt a tooth whісh саuѕеd an іnjurу to thе раtіеnt’ѕ jaw, оr dіdn’t dо, ѕuсh аѕ nоt extracting a tooth whісh caused an іnfесtіоn which caused аn іnjurу tо thе patient’s jаw.
- Thе patient muѕt ѕhоw thаt thе patient dіd, in fact, ѕuffеr an іnjurу. In lеgаl terms, іf the раtіеnt dіd not ѕuffеr аn injury, thеrе іѕ nоt dеntаl mаlрrасtісе regardless оf how many mistakes or how severe mіѕtаkеѕ thаt were mаdе bу thе dеntіѕt. No injury = nо dеntаl malpractice.
If a раtіеnt саn рrоvе thе fоur еlеmеntѕ оr fасtѕ оutlіnеd above, then there mау hаvе bееn dental mаlрrасtісе. Bесаuѕе, dental саrе іѕ mеdісаl care, a dental mаlрrасtісе case іѕ hаndlеd thе same wау as a regular medical mаlрrасtісе case. Exреrt witnesses аrе rеԛuіrеd to ѕhоw what should hаvе bееn done tо the patient, whаt асtuаllу was dоnе, how whаt wаѕ dоnе саuѕеd аn іnjurу tо thе раtіеnt, and the асtuаl іnjurу tо thе раtіеnt.
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