Dental Malpractice: What to Do if You’ve Suffered a Dental Injury

Infections and other complications from dental treatment can be caused by malpractice

• Types of dental malpractice lawsuits
• Common dental malpractice injuries
• Elements of a dental malpractice lawsuit
• Defenses to dental malpractice claims
• How to file a dental malpractice lawsuit
• Find a dental malpractice lawyer near you

As much of us try to avoid it (or dread it), almost everyone goes to a dentist at some point in their lives—hopefully many times, since regular dental visits can be essential to keeping your teeth and gums healthy.

Some people are lucky enough that all they need are regular cleanings. But for others, intensive dental work can occasionally (or frequently) be necessary.

Like any medical provider, dentists sometimes make mistakes. When a mistake is the result of negligence and causes physical, emotional and financial harm, it could be dental malpractice and you could be able to recover compensation through a personal injury lawsuit.

Types of dental malpractice lawsuits

There are many types of injuries that could happen as a result of dental malpractice, but these are the most common types of dental malpractice lawsuits:

• Improper tooth extractions
• Failure to diagnose conditions like TMJ or oral cancer
• Lack of informed consent for procedures
• Failure to properly treat complications (such as an infection)
• Failure to properly supervise or oversee staff, like hygienists or techs
• Failure to refer to a specialist
• Wrongful anesthesia administration

Elements of a dental malpractice lawsuit

A dental malpractice lawsuit is part of the personal injury area of law. All personal injury lawsuits are based on 2 elements:

1. The plaintiff (person filing the lawsuit) was injured by the defendant.
2. The defendant was negligent, and their negligence caused the plaintiff’s injury.

In a dental malpractice lawsuit, the plaintiff would need to prove these elements in order to make a successful claim:

• There was a dentist-patient relationship.
• There was a medical standard of care for their specific symptoms, treatment, condition, or circumstance.
• The dentist did not follow the standard of care.
• The patient was injured because of the dentist’s failure to follow the standard of care.
• The patient’s injuries resulted in financial costs.

Usually, there’s no dispute about the existence of the dentist-patient relationship, so that’s an easy element to meet.

The medical standard of care is a little more subjective.

This is defined as the type of care that a similarly trained and skilled dentist in the community would have provided under the same treatment circumstances. Your lawyer will try to demonstrate this through the testimony of an expert, who would usually be a dentist from the community (or one who is familiar with the community) who is familiar with the condition and treatment at issue.

Why does it matter that the expert witness is “from the community”?

Although there are accepted treatments for certain conditions, there are differences in how dentists practice and treat patients. For instance, a dentist in a small, rural dental clinic might not have access to the same technology and equipment as a dentist who practices in a large city with a state-of-the-art facility.

If the dentist in the small clinic is sued for malpractice, the court would look at how the dentist would be expected to treat the patient based on the resources and tools available in their circumstance.

Breach and causation

Breach and causation will be the critical pieces of your dental malpractice lawsuit. Your lawyer will need to prove that the dentist either caused the injury or made an existing condition worse because of their action or inaction.

They will ask the expert some questions about what the dentist should have done, what they actually did, and how those actions or failures to act contributed to your injury.

Damages

The purpose of personal injury law is to make the plaintiff whole. In other words, while a lawsuit can’t undo the harm you’ve suffered, the purpose is to restore you financially to the condition you would be in if the injury hadn’t happened.

If the injury resulted in pain that ultimately went away, or if you were able to be treated by a different dentist and the condition was alleviated, it might not be worth the expense of a dental malpractice lawsuit.

You can claim damages for costs associated with:

• Medical treatment, surgery, prescription medication, doctor/dental visits, hospital stays, or other treatments related to the injury
• Lost wages if the injury resulted in missed work
• Pain and suffering
• Wrongful death, if you lost a family member because of dental malpractice
• Other expenses related to the injury

Defenses to dental malpractice claims

No dentist wants a malpractice claim against them. They will likely try to settle your lawsuit out of court, and there are some documents and evidence that they’re likely to provide as part of the case.

Written consent: They will likely produce the document you signed providing your written consent to the procedure. Often, you sign forms before a medical or dental procedure indicating that you’re familiar with the risks associated with treatment. Read the fine print before you sign. A dentist can claim that your signature indicates that you were aware of the risks and chose to undergo the procedure.

Your medical history: There could be complications that are more likely if you have certain medical conditions. A dentist can argue that if there’s no evidence of those conditions in your medical history, they couldn’t have reasonably known that you were at risk.

Treatment plan: Some dental treatments require more than 1 visit or procedure — and it doesn’t mean that the dentist made a mistake. If there’s a clear treatment plan that includes the possibility for additional visits or procedures, that will be important evidence.

Notes: The dentist’s chart should have an accurate description of each visit, diagnosis, treatment, and procedure performed. If there’s a malpractice lawsuit, your lawyer’s experts will examine the chart to look for inconsistencies, lack of clarity, missing information, or other issues.

How to file a dental malpractice lawsuit

Some states require an affidavit from a health care provider that says your case has merit before you file a lawsuit.

You also might want to file a complaint with your state’s board of dentistry before filing a lawsuit. Sometimes that’s an important piece of evidence in a personal injury lawsuit.

One step that would be important before filing a lawsuit is to get a second opinion concerning your condition. For instance, you might think that something has gone wrong with your treatment, or that you’re not responding as you should be to a procedure, but that doesn’t always mean there’s malpractice.

You should visit a different dentist and ask their opinion on your treatment. They might be hesitant to say that your dentist is liable for malpractice (especially in a small community where professionals in the same field are likely to know each other), but they might acknowledge that they don’t think your treatment was the way they would have handled it.

It’s also important to keep records of your expenses associated with the dental injury. This includes a journal of any related medical bills, lost time from work (other than the time you would ordinarily take for the dental visits), and other expenses.

In addition, if the treatment results in ongoing pain or requires additional procedures, keep a log of your physical condition (pain and other symptoms) on a daily basis so that you can recall later how the malpractice affected your daily life.

Find a dental malpractice lawyer near you

Any lawsuit that involves medical diagnoses or treatment is going to include highly technical evidence. Most lawyers don’t have a medical or dental degree, but those who are experienced in these types of cases will know a bit about the circumstances.

More importantly, though, they know who to rely on.

In other words: Experts.

Your lawyer has several roles:

1. Review the facts and evidence to advise you on potential outcomes for your case.
2. Hire experts who will be qualified to testify about your dentist’s malpractice.
3. Minimize your liability (chances are, a “passive” patient isn’t liable for their own injuries in a dental malpractice case, but the defense might argue that you should have known or done certain things differently in order to minimize complications).
4. Work with actuaries and other financial professionals to determine exactly how much compensation you need to cover your past, present, and future expenses related to the injury.
5. Settle your case with the defendant or go to trial if necessary.

Have more questions?

Enjuris offers a variety of resources for finding a dental malpractice lawyer near you:

• Personal Injury Lawyer Directory
• Tips for Hiring a Personal Injury Lawyer
• How to Choose the Best Lawyer
• The Best Medical Malpractice Lawyers
• Medical Malpractice: The Complete Guide
• What to do if You Suspect Medical Malpractice