The Florida dental malpractice standard of care is essentially the minimum level of care that Florida law will tolerate. If a dentist’s conduct falls below the standard of care, the dentist is vulnerable to an administrative complaint with the Florida Board of Dentistry, as well as a dental malpractice lawsuit. Thus, this is often the point of contention in a dental malpractice lawsuit. One side has an expert that says the dentist breached the standard of care through negligent acts or omissions that left the injured patient with hefty medical bills and a bad result, and the other side has an expert that says the dentist did nothing wrong. At the end of the day, the power is in the jury’s hands to decide which expert they believe.
As with other personal injury matters, a dental malpractice case typically moves forward and ends up in court because the person who caused the harm refuses to admit to doing anything wrong. The cases often begin with the patient simply asking for his or her money back for the procedures that went wrong, or the patient asks for help paying for the medical bills to fix the damage the offending dentist caused. The aggrieved patient typically does not search for a dental malpractice lawyer until the dentist digs in, refuses to help, and hires a defense team, including a defense attorney and the defense’s expert. This is usually when the patient seeks the help of a lawyer, and the dental malpractice claim begins.
The Battle of the Experts
To bring a dental malpractice lawsuit in Florida, the injured patient’s lawyer must bring in an expert witness review medical records and state that the offending dentist breached the standard of care. This is thought by many to be a burdensome hurdle created to protect doctors from lawsuits. Others assert that this hurdle is necessary to prevent frivolous dental malpractice lawsuits. Regardless of the reasons for the requirement, a Florida dental malpractice lawsuit will often boil down to the word of the injured patient’s expert witness versus the word of the defense’s expert witness. This is what we call a “Battle of the Experts.”
In cases where it seems obvious that a dentist committed malpractice, it might seem strange that an expert’s opinion is even necessary. For example, in the absence of dental malpractice, it might seem odd that a person could pay $20,000 or $50,000 for dental work and a great smile and end up with a damaged mouth and a terrible smile. It might seem strange that a person would pay thousands of dollars for dental implants, and then experience the dental implants falling out, especially considering that implants have a success rate of around 99%. Similarly, it might seem odd that a person could have a few teeth removed and end up with a debilitating infection that causes permanent damage, all without some sort of negligence on the part of the dentist. Nevertheless, the defense will inevitably deny liability, even though the average person knows these types of things don’t just happen, not with a properly trained and cautious dentist anyway.
So, what is the big deal? There is an insurance policy in place and a severely injured patient. What is there to argue about?
Money. You already knew that. I didn’t even have to say it. The goal of the defense is to create doubt to save money for the dentist and the insurance company, and they’re good at it. They’re paid to be good at it. While the injured patient’s expert points to a result that statistically could not happen without some sort of negligence, the defense expert will attempt to create doubt by blaming the patient’s behavior, health, or habits for the unfortunate result. In other words, it’s the patient’s fault that the patient suffered injuries. They will point to the patient’s diet; they will blame smoking; they will blame drinking; they will blame sleeping habits; they will blame Diet Coke. They will blame anything and anyone, other than the dentist that caused the harm.
In addition to blaming the patient, the defense will blame statistics and bad luck. In other words, chance is to blame. The unfortunate result was the one, odd statistical anomaly that happened to show its tiny little, 1-in-a-million head, while this blameless dentist was doing everything perfectly. The poor dentist drew a 3 when he needed an Ace.
Like a criminal defense attorney whose job is to poke holes in the prosecution’s arguments, the defense’s goal is to muddy the waters and create doubt. The plaintiff’s goal, on the other hand, is to keep everyone focused on the obvious, common-sense fact that certain things simply do not happen without negligence. This push and pull of confusion and clarity will depend largely upon the expert witnesses involved. More specifically, this battle of the experts usually boils down to an expert’s ability to simplify complicated ideas and whether the jury trusts the expert. This is the crux of the battle of the experts.
Standard of Care for Dental Procedures
The standard of care in Florida dental malpractice cases can vary depending on the procedure at issue. For example, a surgical procedure would have a very different standard of care than a procedure involving braces. Keep in mind that the standard of care in Florida dental malpractice cases is constantly evolving. A typical visit to the dentist was much more brutal 100 years ago than it is today, and dental procedures should be better in 100 years than they are today. However, the standard of care changes relatively slowly, and thus we can confidently discuss breaches of the standard of care at any given time. Below are some of the more common procedures that result in dental malpractice lawsuits, as well as a brief discussion of the standard of care for each procedure.
Standard of Care for Dental Implants
Dental implant procedures often end up in dental malpractice litigation because the dentist failed to properly plan for the procedure or because the dentist attempted a procedure the dentist was not adequately trained to perform. As a result, the dentist will place the implant at an improper angle or location. Other times, the dentist will cause nerve damage during implant placement. Overall, there are many ways a dentist could breach the standard of care in placing a dental implant. Below are some of the more common breaches of the standard of care in dental malpractice cases involving implant dentistry.
- Failing to take specific measurements to determine the proper size dental implant to use;
- Placing a dental implant that is not the proper size, length, or width;
- Placing a dental implant too close to a natural tooth such that implants cannot be properly restored;
- Placing an implant too close to another implant such that implants cannot be properly restored;
- Failing to complete ridge augmentation prior to placing the dental implant, where appropriate;
- Failing to ensure there was enough bone at either side of the implant;
- Failing to properly perform a bone graft procedure;
- Failing to place dental implants in stable bony environment;
- Causing damage to the inferior alveolar nerve during implant placement;
- Placing an implant off center;
- Placing an implant at an improper angle;
- Placing a dental implant too soon after an extraction;
- Placing an implant where condition required a sinus lift procedure prior to placing the implant, such as significant bone loss or pneumatized sinus.
Standard of Care in Nerve Damage Cases
Dental malpractice cases involving nerve damage typically involve the three following causes: (1) nerve damage from dental injection; (2) nerve damage from dental implants; and (3) nerve damage from tooth extractions. Nerve damage may show up during the dental procedure, or it may turn up later. Dental procedures often involve anesthetic, and so numbness is generally present after the dental procedure. However, sometimes the numbness does not go away. Other times, the patient begins to feel strange sensations, like tingling, burning, crawling, or buzzing feelings. These are common symptoms of nerve damage.
Here are some of the ways a dentist may breach the standard of care in a Florida dental malpractice case involving nerve damage:
- Causing a patient nerve damage because of poor planning and overall sloppy dentistry, as discussed above;
- Overfilling during a root canal on a lower tooth and pushing the gutta percha material out of the apex of the tooth and into the inferior alveolar nerve canal below;
- Failing to timely examine the patient after the patient complains of nerve damage symptoms;
- Failing to timely evaluate the patient’s nerve damage;
- Failing to treat the patient’s nerve damage;
- Failing to send the patient to a nerve specialist.
Standard of Care in Crown and Bridge Cases
Crown and bridge cases are some of the most common sources of administrative complaints with the Florida Board of Dentistry. These cases typically involve improperly fitted crowns with open margins or overhang, which cause the patient’s teeth to decay underneath the crown. As a result, the patient often loses the tooth or needs to pay for root canal procedures. Here are some of the more common breaches of the standard of care for dental procedures involving crown and bridge work:
- Seating a crown with overhang;
- Seating a crown with open margins;
- Over-preparing teeth for crowns;
- Failing to remove decay prior to restoring tooth;
- Failing to seat crown with acceptable fit and acceptable contours;
- Failing to assure a tooth had sufficient tooth structure to accommodate a crown;
- Failing to properly adjust occlusion prior to cementing permanent crown;
- Failing to properly place and/or fit the permanent crown on the tooth;
- Failing to verify the fit and seal of permanent crown before seating;
- Failing to adequately assess and correct a patient’s crown once the fit and seal had been compromised;
- Failing to use a splint to add support for a bridge where appropriate.
Standard of Care in Root Canal Cases
As with crown and bridge cases, root canal procedures are a common source of administrative complaints with the Florida Board of Dentistry and dental malpractice lawsuits. With regard to root canal procedures, dentists commonly breach the standard of care in the following ways:
- Failing to take an x-ray before and after root canal treatment;
- Overfilling a root canal;
- Under-filling a root canal;
- Failing to perform vitality testing;
- Failing to use rubber dam clamps during treatments, where appropriate;
- Leaving a foreign body, a piece of an instrument, within the patient’s tooth after performing a root canal;
- Failing to immediately inform patient of separated instrument or broken root canal file;
- Failing to refer patient to a specialist upon discovery of complications associated with root canal treatment;
- Perforating the side of a root with the root canal file during root canal procedure;
- Performing a root canal on the wrong tooth;
- Failing to clean every canal in the tooth during root canal treatment.
Standard of Care for Tooth Extraction
Extractions are surgical procedures that can result in serious damage to a patient’s bone, surrounding teeth, sinus, and nerves. Some of the more common ways a dentist might breach the standard of care as a result of an extraction procedure are as follows:
- Removing the wrong tooth;
- Failing to properly maintain records that justify extracting a tooth;
- Damaging the inferior alveolar nerve during extraction;
- Ripping a hole in the sinus during extraction, which is called a “communication” or “oroantral fistula”;
- Failing to review a patient’s medical history to see if the patient is taking bisphosphonate medications or other medications that increase the patient’s risk of damage;
- Failing to remove the entire root during the extraction;
- Leaving a portion of the root in the patient after extraction;
- Failing to refer the patient to another practitioner to remove retained roots;
- Failing to section tooth during extraction, when appropriate.
Standard of Care for Osteomyelitis
Osteomyelitis is an infection of the bone tissue that results from serious dental infections. These cases can be extremely severe, and they can result in multiple surgeries and tens or hundreds of thousands of dollars in medical damages. Osteomyelitis can cause lifelong disability and even death. Some of the ways a dentist or oral surgeon may breach the standard of care in a dental malpractice case involving osteomyelitis include the following:
- Failing to recognize the severity of the postoperative infection;
- Failing to perform culture of infection;
- Failing to perform testing to determine appropriate antibiotic;
- Performing inadequate removal of infection;
- Performing inadequate removal of necrotic tissue;
- Failing to prescribe appropriate type and dose of antibiotic to treat postoperative infection;
- Failing to refer patient to specialist, when appropriate.