Dental malpractice can occur when a dental patient is harmed through the provision of sub-standard care. Just as medical doctors can be held liable for medical negligence, so can dentists
In order to make a successful case for dental malpractice, an injured patient and their attorney will need to establish the following:
- the existence of a dentist-patient relationship
- the appropriate medical standard of care under the circumstances
- how that standard of care was breached, causing harm to the patient, and
- the nature and extent of the patient’s injury.
The first element — whether there was a dentist-patient relationship — is typically not disputed as there are typically payments made and appointments kept.
The second consideration, the “medical standard of care,” means the level and kind of care that a skilled dentist in the community would have provided under the same circumstances. This is almost always established by a qualified expert medical witness who has been retained by the plaintiff’s attorney. This expert is usually a health care professional who has experience with the kind of procedure that is the subject of the lawsuit. So, if you are suing your dentist over complications from a tooth extraction, the expert witness would be a dentist who has performed this procedure in the past.
The “breach” and “causation” elements are essential. A plaintiff must prove that the health care provider caused the injury or made an existing condition worse by his or her action or lack of an appropriate action. Testimony from a qualified expert medical witness is critical to establishing causation. What steps should the dentist have taken in treating the patient? What steps were actually taken? How did those steps cause or contribute to the patient’s harm?
It is also important to consider the seriousness of the “injury” before filing a lawsuit. If the injury is minor (such as temporary pain and discomfort), then, even if it was caused by malpractice, it may not be worth the time and expense of a lawsuit.
It is necessary to obtain an affidavit from a health care practitioner saying that the lawsuit has merit before the presuit process can begin and before a lawsuit can be filed. A Miami personal injury attorney will be familiar with any and all procedural requirements that must be met in order to bring your case to court.
Prior to filing a lawsuit, the parties must complete the pre-suit process. This is a 90 day period during which the Plaintiff provides a Notice of intent and an affidavit from a expert medical provider that is licensed in the same medical specialty(in this case that provider must be a dentist). The parties will then exchange discoverable information and both parties have the right to take unsworn statements.
If the parties do not settle the case at the conclusion of the pre-suit period, then the Plaintiff can file a lawsuit.
The lawsuit officially begins once a complaint has been filed with the court. The defendant dentist then has 20 days to respond to the complaint.
The parties then exchange discovery, which includes documentation such as the patient’s dental records, records of any subsequent treatment, and evidence of the treatment costs incurred by the plaintiff and/or his or her dental insurer.
Discovery also includes testimony from the plaintiff, the defendant, and any other fact witnesses. Expert testimony is also taken. Expert witnesses can be dentists who evaluate the patient’s records, or experts who testify about the financial harm the plaintiff suffered as a result of the sub-standard care.
If the case does not settle out of court, and is not dismissed by the court, then it will proceed to trial.
Some of the more common scenarios of dental malpractice include:
- improper extraction of teeth
- failure to diagnose various conditions
- failure to properly treat complications of care
- failure to properly supervise or oversee actions of employees
- wrongfully administered anesthesia
- failure to refer to a specialist, and
- lack of informed consent.
Our law firm recently settled a case for the dentist policy lints($1,000,000.00) where the defendant dentist failed to diagnose and treat an infection. This lead to osteomyelitis and removal of the patient’s jaw.
One of the most important defenses in a dental malpractice case is proper documentation. The patient’s dental record must contain a clear chronology of events, future treatment plans, and all important communication between the dentist and patient. Comprehensive documentation also includes:
- a copy of the written informed consent for any procedures that were done
- a clear record of the patient’s history
- a clear treatment plan (including documentation explaining the reason for any treatment for which the patient has been billed), and
- notes written at or near the time of the patient’s treatment.
Keep in mind that many people will examine the dental record if there is a lawsuit. Missing pages, inconsistencies, or unclear documentation will be problematic for the defense. In the case discussed above we also hired a handwriting expert and determined the doctor altered his chart.
For More Information please call our Miami Personal Injury Lawyers today.
Mark Kaire has been practicing law in Miami for nearly 30 years. He is dedicated to helping the injured people of Miami receive compensation. Mr. Kaire has been blogging on Miami’s legal issues for many years.