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Can I sue my dentist for negligence?

Whether going in for an annual cleaning or a more intensive dental treatment, you have certain expectations during your trips to the dentist’s office — namely, that your dentist is looking out for your best interest and oral health. For the most part, patients can trust their dentists to do just that.

Of course, trustworthiness alone doesn’t mean dentists are infallible; mistakes are still made and people need to be held accountable. If you or a loved one has suffered an injury as a result of dental negligence, the team at Gerard Malouf & Partners can help. Our solicitors are experts in personal injury and medical negligence laws and are prepared to help in any way they can.

What kinds of injuries can you incur at the dentist?

While typically thought of as a lower-risk environment than what’s often faced by general practitioners and other medical specialists, serious harm can and does occur in the dentist’s office. Dental work like fillings, root canal treatments, tooth extraction and dental implants all come with a certain level of risk. In addition, a dentist’s office could be held liable for the way they treat you and the information they give you — before or after a procedure.

Some common examples of areas where negligence may occur include:

  • Informed consent failings: Dentists must ensure patients are adequately aware of the treatment that they are receiving and have been informed of the associated risks.
  • Treatment without cause: Dentists can be held liable for providing treatment that a patient does not need.
  • Dental implant errors: A botched implant can result in cosmetic issues, bone damage from failed grafts, infections and more.
  • Nerve damage: Excessive pressure with dentistry instruments could cause nerve damage.
  • Misdiagnosis or delayed treatments: Periodontal disease can lead to significant damage to the teeth, gums and bone.
  • Dentists who fail to use the right diagnostic tools, don’t spot these problems or fail to provide preventative or restorative care may be considered negligent.

Defining and proving dental negligence

Dentists are held to the same principles as any other medical professional, such as a doctor, nurse or surgeon, when it comes to negligence claims. However, there are specific considerations that plaintiffs must consider before proceeding with legal action against dentists.

For a dentist or doctor to be found liable for negligence, the alleged mistreatment does not need to be on purpose. Rather, a dentist need only fall grossly short of their professional obligations — and harm others in the process. In Australia, dentists have an assumed duty of care for their patients. This means that a dental professional must provide at least a reasonable standard of care. These are typically norms established throughout the practice, rather than a strict definition, although some states do have specific language in place.

It’s important to know that dentists need not be purposefully inflicting harm to be held liable. Simply demonstrating that the injury was the result of carelessness is enough. That doesn’t mean proving dental negligence is easy. Dentists, like other medical professionals, are generally shielded from some liability by both state and national laws. While it protects doctors and dentists who take on high-risk cases it also makes the bar for proving negligence far higher.

In general, to prove dental negligence or any other form of medical malpractice, you must be able to show:

  • Duty: It must be clear that the patient was under the defendant’s care. Dentists have a moral duty of care that is a part of their profession.
  • Breach: It must be proven that the defendant fell short of the expectations of their duty of care. This category covers the actual negligent action.
  • Causation: At least a causal link must be made between the breach of duty of care and the harm suffered.
  • Damages: The damages being sought must be directly related to the harm caused.

Each of the four elements is essential to proving medical malpractice and no single one on its own will be enough to make a case. Often the most difficult area to prove is causation — simply experiencing negligent treatment is not enough if it didn’t cause harm.

Compensation and deciding to pursue a claim

While dentists can certainly be found liable for negligence, it’s important to consider the amount of compensation you stand to gain before pursuing a claim. Medical negligence claims must meet certain thresholds within the Civil Liability Act 2002 (NSW) to be viable when taking into account legal fees and other costs. While the Act doesn’t provide specific definitions, an injury will typically qualify if it is assessed as being at least 15% as bad as a “most serious case.” In dentistry, a most serious case would typically mean widespread third-degree burns, quadriplegia or other debilitating injuries. If a patient suffered something like moderate facial disfigurement, for example, they might be considered 70% as serious as a most extreme case.

The 15% limit is also the threshold at which a plaintiff would qualify for non-economic damages. While economic losses cover areas like lost wages and superannuation, non-economic damages are for the pain, suffering, emotional distress and life expectancy reductions that may result from a dental injury. Generally, the biggest payouts are compensation for both economic and non-economic losses.

Since patients only rarely suffer such extensive injuries in the dentist’s chair, it’s important to check with an experienced medical negligence lawyer to see whether your case is financially worthwhile to pursue. Even cases with just economic damages may be worthwhile, especially if your recovery has caused you to miss a significant amount of time at work.

A track record of success

All of that is not to say that a negligence claim could be worth pursuing. In one of our recent cases, for example, we were able to earn our client a settlement of over $330,000 for the mistreatment she had suffered

The woman had received both poor management and treatment from her local dentist including:

  • Failure to administer treatment to the lower teeth
  • Building up the plaintiff’s front teeth without reason
  • Failure to inform the patient of risk prior to building up the front teeth
  • Not asking for consent from the patient prior to treatment
  • Poorly trained staff

 

Each of these acts left our client reeling with both physical and psychological injuries. While the defendant dentist in the case did not provide any clinical notes, our team was able to prove dental malpractice through a report from another dentist that demonstrated how the alleged misconduct fell short of the regular duty of care. In the end, the defendant brought no countering evidence to the court and our client’s case was successful.

Our team was able to escape the damages cap established in the Civil Liability Act by proving that the dentist’s actions were intentional.

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Gerard Malouf & Partners
 — Personal Injury Compensation Lawyers

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