An orthodontist, like any other medical professional, has a legal obligation to provide a certain level of competent care to patients. If an orthodontist falls short of this standard and a patient suffers harm as a result, there may be a viable case for malpractice.
For the most part, the legal concepts that apply to medical malpractice lawsuits against a medical doctor will also apply to an orthodontist. This means that a patient harmed by an orthodontist's sub-standard care must establish certain elements in order to bring a successful case.
First, you'll need to show the existence of a provider-patient relationship, which (in the eyes of the law) gives rise to the orthodontist's duty to provide you with competent care based on the circumstances (more on this duty in the next section).
This is usually not a difficult element to establish, since orthodontists typically only treat patients through explicit, signed agreements (part of all that paperwork you fill out in the waiting room).
Did the orthodontist act with the skill and care that a similarly-trained orthodontist would have demonstrated under the circumstances? In legalese, this is known as the medical standard of care, and it's a crucial element in any malpractice case.
In establishing the applicable medical standard of care, the orthodontist will be compared with similar professionals in similar circumstances, taking into consideration factors like the type of community in which the orthodontist practices.
In most cases, it will be necessary for expert medical witnesses to testify about what a competent and reasonably skilled orthodontist would have done in the same situation. In fact, both sides (plaintiff and defendant) often present expert testimony regarding whether the defendant provided care in line with accepted medical standards.
Next, the expert witness will apply the medical standard of care to the facts of your case and methodically show how the orthodontist failed to provide care that measured up to that legal yardstick. This means presenting detailed testimony as to what the defendant should have done and contrasting it with what was actually done.
Establishing this gap (between what should have been done and what was actually done) is one of the biggest challenges in a medical malpractice lawsuit.
It's not enough to show that your orthodontist made the kind of mistake that most others might not have. You'll also need to show that the orthodontist's action (or failure to act) resulted in you suffering some additional injury or harm. There are situations where an orthodontist acted with negligence in treating a patient, but the patient wasn't harmed.
For example, a patient might allege that the orthodontist misaligned the patient's teeth based on incompetent review of the patient's dental records and medical history. The orthodontist might argue that even if that were true, the misalignment was the result of the patient not following the orthodontist's instructions on proper use of rubber bands with the braces.
The trick here is making it clear that your injuries aren't attributable to an underlying medical condition or some other cause, but to the sub-standard care you received.
Finally, you must provide details of the actual harm you suffered ("damages" in legalese). Medical malpractice damages might include the cost of additional medical treatment, and income that you lost or will lose because of inability to work. A medical malpractice plaintiff can usually recover compensation for "pain and suffering" (both physical and mental) resulting from the impact of the sub-standard medical care.
Most of what an orthodontist does involves malocclusion, or misalignment of the teeth or jaw. So the bulk of malpractice claims against orthodontists arise from straightening and realignment procedures, including:
Before offering treatment, some orthodontists ask patients to sign a document waiving the patient's right to file a civil court lawsuit against the orthodontist. Instead, the document states that any legal claim must go through arbitration, a type of alternative dispute resolution.
During arbitration, each side presents their case to one or more arbitrators. The process allows the parties to resolve their legal dispute faster and at a lower cost, plus there's the potential advantage (usually for the defendant) of not having the proceeding open to the public. Patients tend to be at a disadvantage because the arbitrator's decision is typically binding, with only limited options for appeal.
If you're thinking about taking legal action over harm caused by an orthodontist's mistake, it may be time to discuss your situation with a lawyer and determine your best course of action. Use the contact tools on this page to reach out to a medical malpractice lawyer near you, or learn more about finding the right medical malpractice lawyer for you and your case.