We Have The Answers To Your Dental Malpractice Questions
- What is dental malpractice and how do you prove it?
- Is there any formal definition for the standard of care in dentistry?
- In Connecticut, is there any time limit for filing the case for dental malpractice?
- What are the types of injuries that commonly occur in the field of dentistry?
- Can a dentist be held responsible for negligent referral?
- What is meant by “informed consent” in dental treatment?
- How is the standard of care established in dental malpractice trials?
- How do we evaluate your case?
- How does a dental expert evaluate your claim?
- How is a malpractice case started in court?
- How are malpractice lawsuits handled?
- How are cases resolved?
What is dental malpractice and how do you prove it?
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.
An injured dental patient will need to prove four elements in a dental malpractice claim. (These are the same elements a plaintiff needs to prove in a medical malpractice case.) With the help of an experienced attorney, you’ll need to prove:
- The dentist owed you a duty of care – You were in a dentist-patient relationship, shown by the fact that you were checked in, evaluated, operated on or received other services from the dentist.
- The dentist breached that duty – You must show that the dentist breached the duty of care required. Expert witnesses such as other dentists are typically needed to testify as to what they would have done when treating someone in your situation.
- Causation – You must show that you suffered an injury as a result of the dentist’s breach of his/her duty of care.
- Damages – You must prove the type and extent of your injury. The injury must be permanent or at least long-lasting. For example, if your gums were cut during cleaning, you would not have long-lasting damages and would not be able to sue.
When all four of these elements are present, you stand a strong chance of proving that the dentist (or dental staff) was negligent and that you are entitled to compensation for the harm you’ve suffered.
Your attorney will need to present evidence related to your injuries to establish the elements of a negligence claim. Some of the most important forms of evidence in dental malpractice claims include:
- Medical records – Your medical records may indicate what went wrong during the procedure, so be sure that you ask for copies of all of your medical records related to your dental history. X-rays, doctor’s notes, operation notes and other medical records can help establish your claim.
- Communications – Dentists and other dental staff may provide you with written instructions regarding post-op care. Provide your lawyer with all such communications.
- Photos and videos – Take pictures of your injuries, including any swelling or disfigurement that it caused. If you get reconstructive surgery, it will be important to have documentation of what your injury looked like. If there was a video during your surgery, request a copy of it.
- Witnesses – Other medical staff or your friends or family may be able to explain how your dental procedure affected you.
- Employment records – You have a right to receive compensation for any time you missed from work due to the negligent procedure, so ask your employer for a lost wages statement to document this loss.
Most dental negligence claims will settle out of court, as is common in other civil lawsuits. Occasionally, a trial will be required. In either scenario, it is critical to have an attorney who understands the complex procedures and rules governing dental and medical malpractice, which are significantly different from those governing an ordinary personal injury claim. You can count on us, a firm focused on dental malpractice, to provide the skilled counsel and strong advocacy you deserve.
Is there any formal definition for the standard of care in dentistry?
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.”
One of the root causes of malpractice in dentistry, with the exception of oral surgery performed in a hospital setting, is a lack of peer review. Typically in a hospital setting, when an adverse incident occurs, there is a mortality and morbidity committee within that that area of practice in the hospital that will review the actions by the provider to determine whether that if the provider or the hospital can be held responsible for the injuries. Such peer review services serve a gate-keeping function to ensure the fact that providers are adequately trained and are licensed to perform specific procedures.
Generally in the field of dentistry, these are office-based practices with no peer review process. Connecticut follows the Dental Practice Act, which means that if a dentist believes he or she has been adequately trained to perform certain procedures, that practitioner may perform those procedures legally. Whether that person is adequately trained and experienced in doing that, will be a question of fact.
Thus, extraction of a lower third molar by an oral surgeon is different than extraction of that type of tooth by a general dentist. Oral surgeons are specifically trained and have substantial experience in these difficult extractions. Many general dentists, including periodontists, do not have the requisite training and experience to avoid causing nerve injury or fracture of the jaw during this type of extraction.
In a dental malpractice lawsuit, a judge may explain the standard to a jury by saying a dentist is negligent if he or she fails to use the level of skill, knowledge and care in the diagnosis and treatment that other reasonably careful dentists would use in the same or similar circumstances. When we file a malpractice suit on your behalf, we thoroughly investigate the facts of your case to compile evidence of the dentist’s substandard care.
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 90-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.
In cases where there’s been a continuation of care relating to a particular dental issue, the terminal date of the two year statute of limitations may be extended to two years from the completion of that continuing treatment. 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.
What are the types of injuries that commonly occur in the field of dentistry?
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.
Can a dentist be held responsible for negligent referral?
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, Connecticut.
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. The standard of care is established by testimony of a similar healthcare provider. 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.
Typically, we will call on an expert witness, such as another similarly qualified dentist working within the state, to give testimony that helps establish what standard of care should apply in a given situation. For example, in a case involving a failure to detect oral cancer, the expert witness would explain what a reasonable dentist would be expected to look for when examining a patient, how long an exam might take, what the signs of oral cancer are, and how reasonable dentists should react when they detect possible evidence of oral cancer in a patient’s mouth. Once we can establish a standard of care and show that your dentist failed to meet it, injuring you in the process, we can proceed to assess the damages we should seek for medical expenses, lost wages and other losses. Speak with a dental malpractice attorney in Connecticut.
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.
An adverse incident in dentistry merits an evaluation by our firm depends on a number of factors, including:
- An evaluation of the medical records to determine if the standards of care have been breached.
- A determination of whether there is a causal connection between the deviations from standard of care and the injury sustained by the patient.
- The potential economic harm and compensation that a patient may seek
In dental cases, we seek not only a copy of the chart, but also 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 as well as a limited type of CT scan referred to as a cone beam CT scan (CBCT). This provides a three-dimensional view of an otherwise two-dimensional object.
When reviewing your claim to determine the full extent of your damages, we calculate your damages based on:
- Your medical expenses
- The need for any future medical expenses
- Your lost wages
- Whether the malpractice caused disfigurement or a permanent condition
- Your pain and suffering
We pursue maximum compensation for our clients’ claims.
How does a dental expert evaluate your claim?
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 field of medicine or dentistry within five years of the occurrence being reviewed and demonstrate requisite skill and knowledge in that field.
How is a malpractice case started in court?
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.
How are malpractice lawsuits handled?
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 pretrial 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.
How are cases resolved?
When a doctor consents to settlement, there are various alternatives to a jury trial on all of the issues:
- Non-binding mediation. This is the most popular settlement vehicle. The parties select an experienced mediator, either a sitting or retired judge or an attorney with significant mediation experience. There are also alternative dispute resolution organizations that provide mediation services. Mediation allows a time out in the litigation where the parties can freely exchange information and participate in settlement discussions that will not be binding on either side unless settlement is reached. A trained mediator will evaluate the settlement positions of each side and help to find a common ground to resolve the claim. If it is not successful the litigation continues and the information exchanged in mediation, together with the recommendations of the mediator does not come in to evidence in the eventual trial. The vast majority of cases submitted to mediation settle.
- Binding arbitration. Rather than the traditional jury trial, the parties can agree to conduct the trial before a single arbitrator or a panel of three arbitrators. The American Arbitration Association provides a panel of experienced arbitrators or the parties can select a mutually agreeable arbitrator. Arbitration is an expedited means of conducting a trial. It can be scheduled at the convenience of the parties without the need to wait for a case to find its place on the court’s trial list. There are various parameters to arbitration. In most instances, the parties enter into a high-low agreement. The “high” is an agreed upon cap on the award and the “low” is an agreed upon threshold. The arbitrator is not informed of these numbers. If the award exceeds the “high” then the plaintiff accepts what the “high” number is. If the award is lower than the “low” the insurance carrier pays the “low” and the case is withdrawn.
- Last best offer binding arbitration. This is a novel concept. Here each side submits their position statement and their last best settlement position. The mediator/arbitrator than selects one or the other number as the binding award. This approach forces both parties to thoroughly evaluate their case and tends to bring the parties closer to a central number.