Dental malpractice law requires that medical and dental professionals, alike, adhere to standards of care generally accepted by like practitioners within that health field. The deviation from those standards of care can provide a basis to bring a dental lawsuit. In addition to proving a deviation from accepted standards of care there must also be proof of a causal connection between that deviation and an appreciable harm suffered by the patient. The existence of only one of these two components does not give rise to a viable lawsuit. There are instances where the deviation from accepted standards of care is obvious but the injury has healed without any lasting effect. The converse is also true; that is, a devastating injury has occurred but on review the practitioner exercised proper care. Medical and dental practitioners are not absolute guarantors of their results. There are, unfortunately, instances in all the health fields where an untoward result will occur despite the best of care. Usually these are statistically minute. Speak with a dental malpractice lawyer in Fairfield County CT.
The standard of care for dentistry is typically defined as the degree of care that a reasonable and prudent dentist would exercise under the same or similar circumstances. Historically, this standard is applied from the perspective of persons “in the community with similar education and experience.”
Connecticut law generally provides a two-year statute of limitations for dental malpractice claims. However, a plaintiff can also petition the Court to obtain a ninety-day extension of the statute of limitations, in order to obtain the required good faith certificate. There are well defined, but limited exceptions that may permit suit to be instituted after two years. Each such case must be individually evaluated, and consultation with an attorney is necessary to know if a claim can be brought. Malpractice cases require time to be evaluated and you should not delay speaking to an attorney if you believe you have been the victim of malpractice. Speak with a Fairfield Connecticut dental malpractice attorney.
An analysis of dental malpractice by the National Association of Insurance Commissioners defines dental injury on a nine-point scale ranging from “minor injury” (emotional, temporary insignificant, and temporary minor injuries) to “significant injury” (temporary major, permanent minor, and permanent significant injuries) to “major injury” (major permanent and permanent grave injuries, which may include death). Such types of injuries may occur due to many aggravating and mitigating factors like unnecessary advancement of disease, operative injury, visceral/nerve injury, foreign body remnants, failure to relieve due to ineffective operation, and unnecessary/inappropriate surgery.
Although referrals generally improve the quality of care patients receive, a patient is sometimes injured while under the care of the referral dentist. A negligent referral occurs when a patient is referred to a dentist who is known to be unqualified due to a lack of skill or judgment. In some cases, the lack of skill or judgment may be due to impairment such as drug abuse, alcoholism or systemic disease. In others, it may simply be due to general carelessness or apathy on the part of the clinician. Speak with a dental malpractice attorney in Hartford, Fairfield, Bridgeport, Stamford, and New Haven, CT
Informed consent means consent provided by the patient for undergoing treatment. A patient has the right to be fully informed of the risks, benefits and alternatives to the intended procedure. In cases of extractions, that consent must be in writing and signed by the patient before any sedation or anesthesia is given. Before proceeding with the treatment, the dentist must assess and weigh the various factors of the patient’s competency to give his/her consent. In addition, the dentist must assess whether the patient understood the information conveyed and whether the patient voluntarily gave consent.
At trial, a plaintiff establishes the standard of care for dental malpractice trial by offering evidence of what similar dentists would do under similar circumstances and then by showing that defendant did not meet that standard. Counsel for the defendant will attempt to counter with evidence establishing different criteria. The factfinder (either a jury or a judge) in the case is responsible for determining the appropriate standard of care for the given treatment and evaluating the evidence to determine whether the defendant complied with the standard. Speak with a dental malpractice attorney in ct
Evaluating these potential claims requires a thorough knowledge of the facts and the medicine involved. In our practice we ask the client to provide a detailed chronology of all events relating to the issue. The document is protected by the attorney-client privilege. It gives us a detailed roadmap of the case. From there we request all relevant medical and dental records. Few patients understand that they have a right, by law, in Connecticut to a complete copy of their medical and dental records. Section 20-7c of the Connecticut General Statutes requires practitioners to comply with a request for records within 30 days. Doctors may charge $.45 per page for copying costs plus a reasonable fee for duplicating x-rays and models. The failure to comply with a request for the records can expose a doctor to disciplinary action by the state Department of Public Health.
In dental cases we seek not only a copy of the chart, but all of the diagnostic studies that have been done, including x-rays, molds, models, impressions, and photographs. Dental x-rays can be of the full face (called a panorex), bite-wings (smaller films that display generally the crown of the tooth), and periapical (displaying the crown and entire root of the tooth). More dentists are employing digital x-rays allowing for multiple copies to be printed and which are all of diagnostic quality.
Before asking an expert to evaluate the claim we attempt to compile a complete file, including all subsequent treating records as well. In fairness to the potential defendant an evaluating expert should be looking at the entire record in order to judge the care that is in question. In addition, we understand the devastating impact that will occur when a letter from a lawyer arrives notifying the doctor that we are evaluating a potential claim.
In Connecticut a claim for dental malpractice cannot be commenced without a thorough evaluation by what the law refers to as a “similar health care provider;” that is, a doctor who generally practices in the same specialty. If the potential defendant doctor is board certified by an appropriate specialty board then the evaluating expert must possess the same qualifications. In order to evaluate malpractice cases an expert must have practiced or taught in that filed of medicine or dentistry within five years of the occurrence being reviewed and demonstrate requisite skill and knowledge in that field.
The lawyer signing the lawsuit papers, called the Writ of Summons and Complaint, must attach a good faith certificate attesting that the lawyer possesses a good faith belief that there is probable cause to believe the claim has merit. The Complaint sets forth the factual claims and allegations of malpractice.
The good faith certificate requires that the lawyer must have a report signed by an appropriately credentialed expert evaluator that not only sets forth a reasonable basis for the belief that there has been malpractice, but also gives a detailed basis for that belief. An unsigned copy of that report must be attached to the lawsuit papers. In the event an attorney attempts to commence a malpractice case without the requisite evaluation and report, that lawyer is subject to disciplinary action by the court. A lawsuit that is commenced without the requisite good faith certificate and accompanying report is subject to dismissal.
Some states require that malpractice claims must first be submitted to a panel or tribunal, often made up of lawyers, doctors and laypersons, prior to instituting suit. Connecticut does not.
Once your case has been evaluated by one of our experts who is willing to testify that there have been deviations from the standards of care that have caused you harm, we place the case into suit. This is accomplished by the preparation of a complaint that lays out in succinct fashion the factual allegations of your case and the specific allegations of malpractice. In Connecticut we do not ask for a specific sum of money in the lawsuit papers. A Tuesday is selected as the “return day.” This is an administrative date that merely sets the commencement of the lawsuit. No one is required to appear in court on the return date.
The complaint is served on the doctor by a state marshal and the original is returned to court. Defense counsel is required to file an appearance within two days of the return date. Thereafter the parties will address refining the pleadings. Eventually the defense will file an Answer, responding to the allegations of the complaint. The defense may also file a Special Defense. Typical special defenses in malpractice cases especially dental cases, are allegations that the patient failed to follow the doctor’s advice or in some other manner was guilty of negligence in maintaining his or her mouth. This raises what the law refers to as comparative negligence. The defense must prove these allegations. If proven the jury then decides what percentage of the total negligence should be ascribed to the defendant and to the plaintiff. If the plaintiff’s percentage of negligence is greater than 50% then the jury will find for the defendant.
Another common special defense is that the claim is barred by the applicable statute of limitations. It is not unusual in cases involving extended periods of treatment that some or much of the continuing treatment extends back beyond the traditional two year period allotted for in the statute of limitations. This is a factual defense that must be proved by the doctor. There are specific theories of law involving the continuous course of treatment or continuous course of conduct that may extend the statute of limitations. This is a complicated legal and factual issue that has to be addressed on a case by case basis.
We will next file a reply to the special defenses and the case will be claimed to what is known as the trial list, by the filing of a certificate of closed pleadings. Your case takes its place in line with all of the other civil cases seeking a jury trial. There are 13 separate judicial districts in Connecticut and the trial list for each is different. Typically cases take about 1-2 years to be exposed for trial. In most districts the court will set a scheduling order to regulate the orderly progression of discovery and depositions. A trial date will eventually be selected together with a pre-trial conference.
Settlement discussions cannot occur in malpractice cases without the written consent of the defendant doctor. Generally, this does not occur until the depositions of the doctor and experts have been accomplished. At times it does not occur until the very eve of trial. In some instances the doctor will not consent and a trial is required.
When a doctor consents to settlement there are various alternatives to a jury trial on all of the issues:
Contact a dental malpractice lawyer in Bridgeport, Fairfield, Hartford, Stamford, New Haven, and Fairfield County CT