Dental Malpractice

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Dental Malpractice Lawsuit
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A few months ago, a dental malpractice insurance company came to my dental school and shared many different dental malpractice cases with us.

Winning a Lawsuit Against Your DentistOne that stuck out to me was of a young woman who went to the dentist to have a routine procedure performed.  After she left the dentist’s office, her tongue was permanently numb.  The dentist felt really bad that she could no longer feel anything with her tongue and offered her $10,000.  She refused the money the dentist offered her and decided to sue the dentist for somewhere in the neighborhood of half a million dollars.  She lost.

Why did she lose?  Did the malpractice insurance company simply have extraordinary lawyers?  No, the reason she lost was because she lacked one of the four necessary ingredients to winning a dental malpractice lawsuit.  I’ll now explain what those four requirements are and then I’ll explain what went wrong in this young woman’s lawsuit.

Below is an interesting paragraph that explains what those four magic elements are that you must have in order to win a malpractice lawsuit against your dentist:

In most malpractice cases the patient must prove all of the following four elements of a malpractice claim: (1) – the existence of a duty, usually implied by the doctor-patient relationship; (2) – a breach of the duty — in malpractice, a breach of the standard of care; (3) damages — in nonlegal terms, an injury; and (4) causation, a causal connection between the failure to meet the standard of care and the injury alleged.

The initial burden of proving malpractice lies with the plaintiff (patient).  The patient must prove by a preponderance of the evidence all four elements of the claim.

Source: Contemporary Oral and Maxillofacial Surgery by James R. Hupp

If you didn’t understand all of that, don’t worry – I’m going to list out the requirements below and talk about each one of them.  After researching the topic of malpractice lawsuits, I found that these are the four standard elements you need in order to mount a successful lawsuit against your dentist.

The Four Necessary Ingredients to Successfully Sue Your Dentist

1. The Existence of a Duty – First, you have to prove that your dentist has a duty to care for you.  This is implied by the dentist-patient relationship.  All you need to show this is documentation that the dentist was actually treating you as a dentist.  This can be easily proven.

2. A Breach of the Standard of Care – Next, you have to prove that your dentist violated the standard of care.  The standard of care is roughly defined as what is clinically acceptable and recommended given the circumstances.

For example, if your dentist was performing a lingual frenectomy and cut back way too far, damaging a nerve in your tongue, then that would be a violation of the standard of care.  The standard of care when performing a lingual frenectomy would be to simply remove that portion of the frenum that is causing a person to be tongue-tied.  If a dentist continues cutting into the tongue, then that would be a violation of the standard of care.

3. The Dentist Injured You – Next, you must show that the dentist injured you.  This shouldn’t be too hard since the reason most people decide to sue their dentist is because of an injury.

4. Proof that The Violation of the Standard of Care Caused the Injury – You need to be able to prove that your injury occurred because of the dentist’s negligence.  For example, let’s say that a guy named Rufus goes to see Dr. Smiley.  Rufus hardly ever brushes and has lots of cavities, so he goes to get a few of them filled from Dr. Smiley.  While the dentist is drilling, she accidentally hits Rufus’ gums with the drill.  A few years later, Rufus has developed gum recession around all of his teeth.

In order to win a lawsuit claiming that Dr. Smiley caused his gum recession, Rufus would have to prove that it was the dentist’s mistake with the drill that caused the gum recession rather than his own poor oral hygiene – a case that would be hard to prove.

You need to be able to directly link your injury with the dentist’s violation of the standard of care.

You Can Lose a Dental Malpractice Lawsuit Even When You’ve Been Injured

You may find it hard to believe, but you can lose a dental malpractice lawsuit when the dentist has harmed you and the dentist can even admit to harming you!  It has to do with the second requirement above about proving a breach of the standard of care.  This is why the young woman in my opening story lost her lawsuit.  Even though the dentist had caused her tongue to be numb, he did what any other dentist would have done under the same circumstances.  The problem was that the young woman’s nerve was located in an abnormal spot.  It wasn’t the dentist’s fault that her nerve wasn’t where most people’s nerves are, it was simply a tragic event that occurred without anyone to blame.

Even if your dentist has caused harm, you need to make sure the your dentist has violated the standard of care before you file your lawsuit.  If your dentist was simply following normal procedure, you probably will have the cards stacked against you when you go to present your case at the courthouse.

Conclusion

It might be surprising to see an article written by a future dentist about how to win a lawsuit against your dentist.  However, I believe in justice.  If a patient has been harmed by a dental professional and it is the dentist’s fault, then the patient should be compensated in some way.  That doesn’t mean I’m a fan of frivolous lawsuits, but I do believe that certain lawsuits can help make the world a better place by revoking the license of those dentists who are truly negligent and harmful to their patients.

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Peer Review Dentistry
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Have you ever had a major inconvenience that was caused by your dentist?  Sometimes dentists do make serious mistakes.  When they do, they should be open and honest with their patients.  However, not all dentists do tell their patients when they mess up.

United States Supreme CourtWhile most dentists are pretty reasonable if you take the time to talk to them about it, some are not.  Certain dentists not only think that they are perfect and never make mistakes, but they also think that they are always right.

It is those kinds of dentists that many people may feel the urge to take legal action so that they can make the dentist pay for the wrong that was committed.

Legal Action Can Be Complicated

Many times, however, legal action is too time-consuming and money-consuming to warrant taking any legal action.  For example, on the Free Advice forums, a woman told the story of how a dentist may have drilled too close to the pulp tissue in her daughter’s tooth.  Her daughter subsequently needed a root canal treatment and a crown.

Unfortunately, she doesn’t share all of the details of her story, but you have to wonder whether or not she tried to get the dentist to give her a free root canal treatment with a crown.

Before attempting to bring legal action against a dentist, it is important to ask yourself if the dentist was truly careless and negligent or if the dentist simply didn’t fulfill your expectations.

If you believe that the dentist truly was negligent, then you have two options:

  1. You can bring legal action toward the dentist (arbitration, lawsuits, etc.)
  2. You can go through peer review.

It would be nearly pointless to sue the dentist over a procedure that would only cost $1500 as the legal fees could end up being more than that.  This is where peer review can come in handy.

What is Peer Review?

Jerry Taintor, in his book The Complete Guide to Better Dental Care, defines dental peer review as follows:

A review of a case by a special committee of volunteer dentists from the local dental society, usually at a patient’s request.  The purpose of the review is to resolve disputes between a dentist and a patient regarding the quality and/or appropriateness of the dental care provided.

Peer review is a simple process that allows patients a quick, simple, free way to discover whether or not negligence occurred by having experienced volunteer dentists review their case.  The dentists that serve on the peer review board will examine the patient’s file that the dentist has on record as well as any x-rays.  They may even wish to examine the patient to get a better idea of what exactly what happened during the course of dental treatment.

How to Get Started with Peer Review

If you are interested in peer review, you will need to get in contact with your local dental society.  Every U.S. state and territory has a dental society.  You can find a list of the dental societies as well as their websites and contact information at this page of dental societies on the American Dental Association’s website.

What Dentists Have to Say About the Peer Review Process

A North Carolina prosthodontist (a specialist in crowns, bridges, dentures, and other types of prosthetic teeth) had the following to say about the peer review process:

As a peer reviewer, I have seen colleagues who have truly committed malpractice however they are unwilling to admit their errors to find a peaceful resolution to the conflict with their patient. They would rather force the patient into litigation on the chance that the patient would not have the financial means to sue them. What ever happened to ‘do no harm’ and keeping the best interest of the patient in site?

Interestingly enough, it seems that most of the dental professionals that are unhappy with the peer review process are general dentists that may not be too experienced.  A general dentist that practices in Nevada even gave the following unprofessional and immature statement about the dental professionals that voluntarily serve on peer review boards:

The weenies that are anal enough to be on most peer review committees are so frightened to confront the combative patient that they typically ALWAYS side with the patient no matter how ridiculous the situation.

Of course peer review does have its disadvantages.  There may be potential conflicts of interest if the patient or dentist is a friend of one of the dentists serving on the peer review board.  However, as one endodontist stated, peer review is far better than getting involved in our complex judicial system.

Transparency is the Best Policy

I have read about many dental malpractice lawsuits and wrongdoings.  I think that this has been very beneficial to me as a dental student and a future dentist.

In two years, when I become a dentist, I will strive to fully explain each procedure to my patients as well as the risks and benefits associated with each treatment option.  If I make a mistake, I will make it right.  I believe that having satisfied patients contributes to the success of a dentist more than anything else.

I believe that if health professionals were to communicate better with their patients and develop a relationship of trust and understanding, that we would see a dramatic decline in the number of health-related lawsuits.

What Do You Think?

Do you wish your dentist was more up-front about a certain procedure?  Have you been involved in peer review or a lawsuit?

Please leave any comments you may have below!