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Dental Malpractice/Legal Issues for the dental patient go top

Disclaimer: I am not your attorney! The information provided here is general in nature, and although I believe it to be accurate, it is provided only to give the reader an overview of the topics offered. The discussion may be incomplete. I am not providing legal advice, and before taking any action, you should verify the information here with your own attorney. If you choose to represent yourself, then you must do your own legal research to verify the accuracy of the opinions expressed in these pages, and whether additional law applies to your case.

Myofacial pain? Do you have a lot of jaw, neck, head &/or shoulder pain? Did you recently (or not so recently) have some crowns done, or bridgework? Mmm hmm . . . Let me say this - I am not trying to hustle up dental cases. Return immediately to your dentist, and if he can't help, get him to refer you to someone who can.

Dental malpractice is not an area that receives much legal attention. What is a tooth worth, anyway? The potential recovery does not seem to be worth the trouble of preparing the case. I became interested in the problem as the result of personal friends who had inferior dental work at about the same time. Since I was hearing about the pain they were suffering, and the refusal of their dentists to acknowledge a problem even existed, I began to study the matter. Initially, dentists weren't talking - but finally I got hold of some very knowledgeable experts. Interestingly enough, some good information came from a text book written by a defense expert witness!

I don't think many people, not even many dentists, are knowledgeable concerning the problems I am about to describe. Now, I am not a dentist, and I may not get all of this in the correct scientific terms, but remember: you read it here first!

Teeth are extremely sensitive. The sole function of the single largest portion of your brain is devoted to management of your mouth, bite and jaw alignment. Surprised? Think about it. What controls the complicated functions that result in speech? How do you avoid chewing your tongue or the inside of your mouth when you are chewing food? The fact is, you brain is constantly realigning your jaw, searching for the correct resting position.

You are sensitive to minute changes in your bite. How small of a change in surface will you notice? Would you feel it if you bit down on a dime? On a piece of paper? When a dentist does a crown or filing, he is likely to affect the alignment of biting surfaces. Correctly done, it should not be a problem for the patient. However, a number of factors can lead to complications, and even permanent injury. The factors include (i) hypersensitivity of the patient; (ii) failure to maintain a proper reference point; (iii) disruption of too many surfaces simultaneously. There can be other factors, but you get the idea.

The injury can be serious. Misaligned teeth can result in pain that worsens over time, rather than subsiding. Symptoms can be "myofacial" pain (pain of the face), pain which makes chewing difficult, headaches, neck and shoulder pain. Inflammation can develop in the joints, making the problem worse. You may have heard this referred to as "TMJ", which refers to the temporo-mandibular joint. Inflammation in the joint can move the jaw out of alignment.

The temporary crown must fit. If the temporary doesn't fit right, what happens? Your jaw shifts to compensate for the incorrect fit, and may develop some inflammation of the joints. The dentist now places the permanent crown - but it doesn't line up right, because your jaw has shifted! He does some grinding on the crown to make it fit better, some of the inflammation goes away, your bite shifts back toward where it was before, but now the crown isn't right for that location. The dentist ends up chasing the bite, with no end in sight.

An example. Let's say you need an upper and a lower crown. They face each other. If the dentist does one crown at a time and is careful, no problem. But what happens if he does both at the same time? He cannot use the opposing tooth as a reference, because he has removed the opposing tooth. After the crowns are in, you have a hard time explaining how the bite is off because your mouth has been open for quite a while in the chair, the facial muscles are tired, and also you have a good dose of novocaine.

In the following days, you have increasing pain in the facial muscles, and chewing and talking becomes painful. The dentist gives you pain killers and makes a couple of adjustments. The adjustments don't solve the problem, because now your facial muscles are experiencing "spasms" - that is, they are tight fatigued from overwork, just like when you lift weights or work too hard in the yard. Because the muscles are tight, the exchange of nutrients and waste is inhibited, causing more pain and more muscle fatigue. The dentist can't find the correct bite, because now even you don't know what is right! This all may lead to months or years of symptoms. The dentist may suggest that it's all in your mind, or that its the result of some other problem over which he has no control.

Stuff you should know. My dentist, who does a great job, never mentioned any of this. Actually, a dentist is suppose to write out a treatment plan and discuss it with you. He is suppose to discuss alternative treatments, and the risks of the procedures undertaken. He should also work carefully so as not to disrupt the bite, and should refer to a specialist any work that exceeds his knowledge or skill. I found that the dentists I talked to "closed ranks." At first, not one would criticize another, or explain these issues to me. Yet these are issues they are taught both in first year dentistry, and in mandatory continuing education courses. I know, because I read the textbooks.

By the way, porcelain crowns are very abrasive and can wear the opposing teeth. Gold, which apparently has fallen into disfavor, is softer and easier on the opposing teeth. Of course, gold is less cosmetically appealing. A third option is a porcelain crown with a metal biting surface.

The main thing is, if you are experiencing the problems I have described, get them fixed! A reputable dentist ought to listen to your concerns and make an effort to solve them. Remember, because the facial muscles may be bruised and tired, solving the problem may require treatment over a period of time.

If your dentist can't help, get a second opinion. If all else fails, contact me, since I can recommend a dentist who is experienced in treatment of these problems. And yes, in a grievous case we can consider the "M" word . . .

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Miscellaneous Jury Verdicts go top

Generally, dental malpractice claims result in small awards. Here's an interesting case, which I haven't read, but given the size of the award, there must have been significant facts in the case. California limits awards in medical cases under a law called "MICRA" to $250,000; but this verdict was for $1,179,000. Jeffery v. Gordon - Los Angeles County Superior Court. California Bar Journal reported in October 1996 that this verdict resulted because a dentist pulled all of a woman's teeth, without providing her with accurate information concerning their condition, and without advising of the available options.

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What are the typical fees & costs? go top

This is the part where I make you really depressed.  Dental Malpractice Insurance companies do not settle easily.  Many of them do not settle at all.  They will be happy to spend $40,000 to avoid offering you a $20,000 settlement.  So, we know that a dental malpractice lawsuit is going to be involved and time consuming.

In most (but not all) instances, you cannot win a dental malpractice case unless you have an expert -- that is, another dentist -- who will testify on your behalf.  That dentist will expect to be paid for reviewing your injuries, writing a report and testifying.  The dentist is likely to charge $300 to $500 per hour and the cost of your expert is likely to be in the area of $5,000 to $10,000 in a serious case.  (Remember, the other side is going to have some experts saying exactly the opposite of what your expert is saying, so he/she must be well prepared.)

There are also "discovery" expenses.  You will have to pay for court reporters to take the testimony (depositions) of the dentist who hurt you and the expert dentists that the other side will be using to prove your dentist exercised the "minimum standard of care" due you from your dentist.  When you take the depositions of the opposing experts, you have to pay for their time while testifying.

Now , the other side has also spent $50,000 getting to this point.  Or if we assume that the defendant's attorneys were charging $300/hr, then the attorney's fees portion of the defense is more like  $48,500 + $12,000 in costs, for a total of $60,500.  The whole case has expended $110,000+, and you ended up with $13,500 in your pocket.

Dental Implant Expert go top

I don't have any discussion for you on dental implants.  However, here is a link for an expert on dental implants who has successfully assisted plaintiffs.  Dr. David Levitt, whose website can be found here.

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