FAST! - Dental Malpractice Info.
Copyright © 1996-2008, Barrington A.S. Daltrey

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I get a lot of e-mail about dental malpractice.  It's very scary, because the problems people write to me are serious and they don't know where to turn.  There aren't very many websites that talk about dental malpractice, probably because it is not a profitable type of law practice.

I haven't very often been of much help to the people who write me about this.  I created this website in 1996 because I had done a couple of dental malpractice cases at the time.  I had done a lot of research, I had a good expert witness to work with & quite frankly, it was disappointing to learn how much damage a dentist can cause to us.

Dentists are professionals, as are lawyers, and like everyone, we make mistakes in our work from time to time.  My advice to dentists is -- please don't be afraid to bring in the assistance of another dentist when you're not sure what to do!  My e-mail contains many sad accounts of situations that went from manageable to really awful because the dentist just kept blundering forward after making a mistake, or after simply confronting a problem that wasn't anticipated.

Lawyers, if you are doing dental malpractice work, please send me an e-mail so I can get potential clients in touch with you!

Dentists and dental experts, if you are willing to review cases as an expert or willing to take on difficult cases that other dentists have abandoned, please send me an e-mail so I can refer clients and/or other attorneys to you!

rev. 4/9/05

You may write me at "dental @ fastbk.com "
(But generally speaking, I am not presently taking on dental cases.)

The following attorneys contacted me in response to the note above:

Marita Nogueiras, Esq. 562/869-9340, located in Downey, California (Los Angeles County). 
Handles both medical and dental malpractice.
(2005)

Richard C. Thiele, Esq.
, U.S. Steel Tower, 600 Grant St., Suite 660, Pittsburgh, PA 15219, 412-281-0900
Indicates he is a civil torts lawyer, with four dental malpractice cases on his client list.  (3/2008)

William G. McCabe, Esq. Law Offices of Neil Kalra, P.C. 100-15 Queens Blvd., Suite 203 Forest Hills, NY 11375 Tel. (718) 897-2211 Fax (718) 897-2221. Mr. McCabe indicates he has been handling dental malpractice cases for approximately 10 years. (2/2010)

The following dental expert contacted me in response to the note above:

Quinn Dufurrena DDS,
838 Palace Pkwy, Spring Creek, NV 89815, Email: "qdufurrena @ frontiernet.net", Telephone: (775)-777-1737. (2008 update -- Quinn's website seems to have disappeared and various online directories place him in Eiko, NV rather than Spring Creek.)


Here is a website I found with a list of dental experts:

SEAK - National Directory of Experts

See also my "dental links". One example is Dane Levy, who offers representation in Los Angeles, Orange County and surrounding areas. (I know of Dane and the others in the "dental links" page only from their websites).















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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.

Then there are court filing fees, record copying fees, jury fees and court reporter fees for the trial testimony.

Now, many lawyers will take your case on a "contingency fee" basis and they might even be willing to advance the costs.  So, if you do not win, all you will be out is your time in testifying and assisting your lawyer in making the best presentation possible.  But "winning" may not be all that glorious either.

Let's make a rough estimate of what might be involved in a typical case.   You have had three crowns done improperly, resulting in a messed up bite, severe pain for eight months and $5,000 fees and costs to another dentist to fix the problem.  You still are in pain to this day, because the fix didn't get rid of all of the temporal-mandibular pain that was caused by the poor treatment and long delay in correcting the injury.

What will the jury award you?  That's anyone's guess, since juries have lots of latitude in setting the amount they think you should be compensated for an injury.  But let's say the jury ultimately awards you $50,000.  Where will that money go and how much time will have been spent on your case by your attorney?  (These are just rough guestimates that I have made so that you will have some idea what a typical lawsuit looks like in terms of time and money.)

initial interviews and discussions
3.0 hrs.


gathering records
1.0 hrs.
$350 in copying charges from medical records copy service

review of records
2.0 hrs.


initial research
2.5 hrs.


draft summons and complaint
3.0 hrs.


filing fees

$350

service of process

$150

consultation with your expert witness
1.0 hrs.


fees for your expert witness

$5,000

answering interrogatories, requests for admissions and responding to requests to produce from defendants
10.0 hrs
$150 in copy charges

prepare and server interrogatories, requests for admissions and requests to produce
3.0 hrs


prepare, serve and file proof of service of summons and complaint
.5 hrs.
$25 court service fees

draft and file motion to compel answers to interrogatories, requests to produce
10
$75 filing fees for motions

hearing on motion to compel
1.5


draft notices of depositions of dentist and staff members
1.0


take depositions of dentist and staff members
4.0
$1000 for court reporters' fees/transcripts

draft and negotiate joint status conference report
.5 hrs.


status conference appearance
1.0 hrs.


arbitration or mediation briefs
4.0 hrs.


arbitration or mediation hearings
3.0 hrs.


request for trial de novo
.3 hrs.


expert witness exchange
1.5 hrs.


draft notices of depositions for opposing experts
1.0 hrs.


depositions of opposing experts
6.0 hrs.
$1000 for court reporter's fees/transcripts $2,000 for expert witness fees

research and drafting to oppose motion for summary judgment
10 hrs.


appearance at summary judgment motion
1.5 hrs.


trial preparation - subpoenas to witnesses
.7
$150 service of process fees

trial preparation - exhibits
3.0
$200 copying costs

trial preparation - research, client and expert preparation, case file review
15 hrs.


trial preparation - prepare  trial brief, motions in limine
6.0 hrs.


trial preparation - prepare oppositions to defendant's motions in limine
4.0 hrs.


trial preparation - jury instructions
1.5 hrs.


pre-trial hearing
1.5 hrs.


miscellaneous time wasted while case trails waiting for a court room
3.0 hrs.


trial, 5 days @ 8.0 hrs. per day
40 hrs.
Jury fees and reporter's fees, $350 per day

pos-trial motions and other matters
15 hrs.







Now, assuming we get a $50,000 judgment from the jury, let's see how we did:

$50,000
($20,000) - less 40% to the attorney.  (Note, the attorney has expended  161 hours, so attorney has netted about $124/hr. -- while my regular billing rate is $250/hr!  Not to mention, I had the risk of making nothing if the jury did not agree with us, or considerably less if the jury felt we were right, but your injuries were worth less than $50,000.)
_______
$30,000
($11,500) - costs advanced, must be repaid
________

You get  $18,500.  But of course, you spent $5,000 to get the injury repaired and you are still in pain.  This is not quite "Larry H. Parker got me $1.5 million," is it?.

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.

<>Reasonable people would not do this.  They would find a way to settle before trial.  We should keep in mind that in general, most cases settle at some point -- and that is usually economically better for everyone involved.  (Well, except for the defense firm, which makes less money if less hours are expended defending the case.)

However, my experience has been that dental malpractice carriers will not settle.  The reason is that when you and I look at the numbers above, both you and I decide it is way too much trouble and we are not willing to gamble the time and expense necessary to get the case to trial.

So, most dental malpractice cases just quietly disappear, without the dentist (or insurance company) paying anything.  That means that while it might be expensive for the insurance company to defend your particular case (in relationship to the $$$ involved) -- in the long run, the insurance company and the dentists are much better off than if they start settling lawsuits, which will encourage more of them to be filed.

Or, anyway, that is the theory that results in "vigorous defense" of even the most obvious dental malpractice.

But you can play with the numbers yourself.  What if the jury gave you $10,000?  What if it gave you $30,000 or $75,000?  What if the jury gave you the MICRA limit of $250,000?  The fees and costs would remain roughly the same.  You can also do "what if" in the event of settlement.  "What if" the insurance company offers a $20,000 settlement before discovery has commenced?  Are you better off?  Should you roll the dice with a jury?





















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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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