We've all heard of medical malpractice, but is there such a thing as dental malpractice? The answer is yes. If you were injured because your dentist failed to practice according to the appropriate standard of dental care, you've probably got a dental malpractice claim.
We start with an explanation of dental malpractice, including the elements of a dental malpractice claim. We'll also walk you through filing a dental malpractice lawsuit and explain why you should think about hiring an experienced dental malpractice lawyer to handle your case.
Let's start with a discussion of dental malpractice generally. Then we'll take a look at some of the most common dentist malpractice claims.
The gist of any malpractice claim—dental, medical, legal, or otherwise—is that the plaintiff (the person bringing the lawsuit) was injured because the defendant (the party being sued) failed to practice according to the applicable standard of professional care. Most times, the plaintiff sues the defendant for negligence.
In a typical dental malpractice case, the plaintiff claims the defendant negligently failed to meet the standard of dental care, causing the plaintiff harm. The plaintiff asks for damages to compensate for the injuries caused by the defendant's malpractice.
The phrase "standard of dental care" has a particular legal meaning. It means that a dentist must use the same level of care and skill that a dentist with similar education and training in the community would use under the same or similar circumstances. In the simplest terms, the standard of care asks: Would a reasonably competent and careful dentist in the community have done what this dentist did in this situation? If the answer is yes, there's no malpractice.
Most dental malpractice claims fall into one of four categories:
A dentist can fall below the standard of dental care by failing to timely and correctly diagnose an injury or condition. Failure to diagnose includes:
When a dentist fails to properly treat (or fails to refer for proper treatment) an injury or condition, the dentist might fall below the standard of dental care. Failure to treat includes:
A dentist must properly train and supervise both dental staff (like dental hygienists, assistants, and technicians) and office staff. The dentist can be held responsible for injuries caused by staff members. Failure to train or supervise might include:
The standard of dental care generally requires a dentist to warn a patient of the known potential risks and complications of a treatment or procedure (or a patient's refusal to undergo a necessary treatment or procedure). Failure to warn can be malpractice if the patient would have chosen a different course had the dentist warned properly.
A viable dental malpractice claim must include proof of these four elements:
Instead of discussing these elements in the abstract, let's illustrate them using a hypothetical case.
Jeff, a 30-year, pack-a-day cigarette smoker, went to his general dentist complaining of a sore on his tongue. He reported to the dentist that he remembered biting his tongue a few months before and thought that might have been the origin of the sore. The dentist diagnosed an infected bite injury and treated Jeff with antibiotics.
Jeff returned to his dentist a couple of months later because the sore had grown and was more painful. The dentist prescribed Jeff a stronger antibiotic.
At his third visit for the same condition—about three months after the second visit—Jeff's symptoms were much worse. The dentist referred Jeff to an oral surgeon. The oral surgeon diagnosed Jeff with an aggressive type of oral cancer that had spread to Jeff's mouth and throat. Jeff claims that he had to undergo much more aggressive treatment than if his dentist had accurately diagnosed the cancer months earlier.
Jeff has a possible dental malpractice claim for delayed diagnosis of his oral cancer. Jeff will need expert testimony from a general dentist who's familiar with the applicable standard of dental care to establish the first two elements, duty and breach of duty. Of course, Jeff's dentist will also have experts who will testify that the dentist met the standard of care.
Every dentist has a duty to practice according to the applicable standard of care. Among other things, this means a dentist has a duty to correctly diagnose dental conditions. If the dentist isn't able to properly diagnose and treat a condition, the dentist has a duty to refer the patient to an appropriate caregiver.
Jeff's expert will testify to several important things. First, any general dentist is educated and trained to diagnose oral cancers like Jeff's cancer. This means the standard of care required Jeff's dentist either to make a timely diagnosis or refer Jeff to another provider for diagnosis and appropriate treatment. Second, Jeff's dentist probably should have suspected cancer at Jeff's first visit. Third, cancer definitely should have been in the diagnostic picture by the time of Jeff's second visit.
The dentist's expert will testify that Jeff's symptoms were consistent with an infection. There was no reason to suspect cancer until Jeff showed up with more severe symptoms at his third visit.
Failure to practice according to the applicable standard of dental care is a breach of duty. The question is what an ordinarily careful dentist with similar education and training would have done under the circumstances.
Given Jeff's history of smoking and his symptoms, his expert is likely to testify that the dentist should have suspected cancer at his first or second visit and followed up with a biopsy or referral. Because that didn't happen, Jeff's dentist breached the duty of care.
The dentist's expert will say that it was reasonable, and within the standard of care, to treat Jeff for an infected bite injury at both the first and second visits.
A dentist malpractice lawsuit is a type of personal injury claim. A successful dental malpractice plaintiff can expect to recover both special and general damages.
Special damages (also known as "economic damages") are intended to compensate an injured plaintiff for things like medical expenses, lost wages, the costs of medical equipment, and other out-of-pocket losses.
The plaintiff's medical bills can be used to prove medical expenses. A letter from the plaintiff's employer's human relations office will establish the plaintiff's past lost wages. If the plaintiff expects to lose income in the future, expert testimony will be needed to prove those losses.
General damages (also called "noneconomic damages") are intended to make the plaintiff whole for "intangible" injuries like pain and suffering, emotional distress, and loss of enjoyment of life. These damages are much more difficult to quantify. How do you put a dollar value on them?
Lawyers and insurance adjusters often use a formula to arrive at a value. The formula multiplies the plaintiff's total medical expenses (past and, if applicable, future) by a multiplier. In most cases, the multiplier is a number between 1 and 5. But if the plaintiff's injuries are life-threatening or catastrophic, formulas and multipliers likely won't be used.
Finally, note that a number of states have put a statutory limit, or "cap" on general damages in malpractice cases. Because these damages might make up the bulk of a plaintiff's damages in a dental malpractice suit, damage caps can significantly reduce case value.
Back to Jeff. Assuming that he proves duty and breach of duty, damages will be a big issue. Here again, Jeff will need expert testimony, likely from an oral cancer expert.
Jeff's dentist didn't cause Jeff's cancer. Jeff's claim is that the dentist failed to timely diagnose his cancer. So the question Jeff's cancer expert will need to answer is: How much did Jeff's cancer progress between the time it should have been diagnosed and when it was diagnosed? There will also be questions about how extensive Jeff's treatment would have been had the cancer been diagnosed sooner.
Jeff's injuries are potentially life-threatening and catastrophic. He'll need an experienced lawyer, working with a variety of expert witnesses, to put values on his special damages (including his future lost income and medical expenses) and general damages.
Causation is the last required element. The plaintiff's injuries and damages must have been caused, in whole or in part, by the defendant's breach of duty. In most cases, if the plaintiff proves that the defendant breached a duty of care and the plaintiff suffered injuries and damages, causation follows. But this isn't true in every case.
In Jeff's delayed diagnosis case, causation comes down to this: How much did Jeff's condition worsen because of the delay? Like the questions of duty and breach of duty, this issue will end up being a "battle of the experts." Jeff believes that he required more aggressive treatment than he would have needed had the cancer been diagnosed sooner.
The dentist's expert will vigorously dispute this, claiming that Jeff's cancer likely was already advanced by the time Jeff first saw his dentist. In other words, the dentist will argue that any delay in diagnosis had little or no impact on Jeff's final outcome.
Filing a malpractice lawsuit isn't like filing a car wreck case or a slip and fall suit. Many states have enacted barriers and disincentives to sue, including things like pre-filing requirements and damage caps.
Some states require that a malpractice plaintiff must send the defendant a notice of intent to sue before filing a lawsuit. Other states mandate that a malpractice claim must undergo pre-filing review by an independent medical expert or a review panel to determine whether it has merit.
Requirements vary from one state to the next, so be sure you understand what your state law requires. Failure to comply with pre-filing requirements usually means a court must dismiss the case.
Malpractice cases don't settle as often as other personal injury claims. Because they can involve significant injuries and damages, malpractice insurers sometimes have little incentive to settle and are willing to "roll the dice" on a trial.
Malpractice insurance policies usually provide that the insured (the dentist being sued) must consent to any settlement. Dentists don't like to settle, because settlement payouts (and jury verdicts that award damages to a plaintiff) must be reported to federal and sometimes to state monitoring agencies. Insurers use this information to decide whether to insure a dentist and to set insurance rates. Unsurprisingly, more claim payouts translate to higher malpractice premiums.
Unfortunately, settlement data you can find on the internet don't offer much useful information about the value of any particular dental malpractice case. Each case is unique, so finding out that another malpractice plaintiff settled for $500,000 tells you very little about the value of your dental malpractice claim.
If you've got questions about the settlement value of your potential dental malpractice claim, your best bet will be to consult with an experienced dentist malpractice attorney.
A dental malpractice case is a civil lawsuit. In most cases, you'll file the suit in state court, in the state where the alleged malpractice happened.
Check your state law for specific filing requirements. Some states require the plaintiff to file an affidavit of merit along with the complaint. Your state might require different or additional prefiling steps.
Every state has a statute of limitations, or filing deadline, for malpractice claims. Be sure you know your state's filing deadline. If you don't file before the deadline expires, the court will have no choice but to dismiss your case.
Malpractice claims are among the most complex of all personal injury cases. They're also very expensive cases to try. Expert witness and other case expenses can easily run into tens of thousands of dollars. Unless it's the (extremely) rare malpractice case involving indisputable liability, it probably doesn't make financial sense to pursue a malpractice case that has collectible damages of less than $100,000.
A quick example will illustrate why. Suppose a jury returns a $75,000 verdict in your favor on your dental malpractice case. Your lawyer has taken the case on a contingent fee basis (discussed below) and will take 40% of the verdict. The lawyer has also advanced all case expenses, which total $30,000. Let's see how the math works out:
Net to Client
You likely won't be pleased walking away with only $15,000 after the ordeal of a malpractice suit. And it's not likely that a malpractice case can be brought to trial for only $30,000 in expenses. Most experienced malpractice lawyers will be looking for minimum damages of low six figures before they'll consider taking a case.
Last but not least, malpractice cases are hard to win. Jurors like healthcare professionals, including dentists. This helps to explain why most malpractice claims that go to trial end with a verdict for the defendant.
Malpractice cases generally, and dental malpractice cases in particular, can be exceptionally complex and difficult. Most lawyers (including pro bono lawyers) who don't specialize in malpractice claims won't touch them. They're simply too fraught with state law pitfalls and requirements, and the costs to bring a case to trial can be prohibitive.
Sometimes you can settle your own personal injury claim. A dental malpractice claim isn't one of those times. Keep in mind that you'll be dealing with experienced insurance adjusters and insurance company lawyers. They specialize in defending malpractice claims, and they'll run circles around an unrepresented plaintiff.
You need an experienced dentist malpractice attorney on your side to give you the best possible chance of success. If you've got a case worth pursuing, you'll be able to find a lawyer who will take your case on a contingency fee basis. This means you won't have to pay hourly legal fees. Instead, the lawyer will take a share—usually 33% to 40%—of any settlement or verdict you get.
If you're ready to pursue your dental malpractice claim, don't take chances going it alone. Find an experienced attorney who specializes in dentist malpractice near you.