Many states require you to make some effort to work directly with your dentist before you take additional steps towards litigation. Even if it isn’t required by state law, it’s generally more efficient to give your dentist an opportunity to address the problem. If you feel uncomfortable talking to your dentist after what happened, you may want to get a friend or family member to contact them on your behalf. The information the dentist can provide that person may be limited for privacy reasons.
Some states require you to provide a certificate of merit from another dentist before you can proceed with a dental malpractice lawsuit. Even if your state doesn’t require a certificate, you’ll still need dentists to testify regarding the treatment and your dentist’s standard of care. Look for a dentist in your area who is the same type of dentist as the one who performed the treatment that caused your problem. For example, if the dentist you’re considering suing for malpractice is a general dentist, your second dentist should also be a general dentist.
Start creating a file with all the documents and information you have concerning your dental treatment. Include bills or forms from previous appointments with the same dentist, as they’ll help establish your dental history. Keep receipts of any expenses or losses you incurred as a result of the injury you sustained. For example, if you had to cancel a presentation because you couldn’t speak due to jaw pain, you would have losses of any sales or income you could expect from that presentation. Contact the dental licensing board or regulatory authority in your state and ask for documentation on treatment protocols relevant to the procedure that caused your injury. These will help you understand and establish the dentist’s standard of care.
These deadlines are relatively short for all personal injury cases, and can be even shorter for malpractice lawsuits. Typically you only have 1 to 2 years from the date your injury occurred to file a lawsuit. You may have more time to file if you had no way of knowing about the injury until months or even years after it occurred. A malpractice attorney will be able to tell you exactly how long you have.
Most malpractice attorneys provide a free initial consultation. Use this opportunity to shop around and interview several attorneys so you can make an informed choice. Malpractice attorneys typically work on contingency, which means you won’t have to pay your attorney anything unless you win your case. If you win your case (or settle out of court), your attorney will take a percentage of your award or settlement amount.
Mediation is much less formal than a court proceeding, and most court rules of evidence and procedure don’t apply. This may make it easier for you to simply represent yourself. Your dentist will have an attorney, and this may place you at a disadvantage. While the mediator will attempt to level the playing field, they are not your attorney and don’t represent your interests.
If you go through the court system, they typically have a form for you to fill out that identifies you and your dentist and describes your claim in general terms. Based on the information in your form, the court appoints a mediator. The court then sends notice to you (or your attorney) telling you who the mediator is and how to contact them.
If you’ve decided not to use an attorney through the mediation process, a court-appointed mediator usually will be the easiest and most cost-effective for you. Court-appointed mediators typically don’t charge for their services, while a private mediator may cost you several hundred dollars.
You may be required to submit a written summary of your claim and the money or other remedies to which you believe you’re entitled. The mediator will set deadlines and let you know the time and place of your mediation hearing.
Don’t submit any original documents to the mediator – you may not get them back. Organize all your documents in chronological order. It can help to create a basic timeline with specific dates, starting when the injury occurred or immediately before.
Typically the mediator will meet with all parties and go over some ground rules for mediation. Then you may be separated. The mediator will go back and forth between you and your dentist and attempt to facilitate a resolution to your claim. If you reach an agreement, the mediator will bring everyone back together to discuss the details of the settlement. You aren’t required to reach an agreement, and it’s okay to reject your dentist’s offer if you don’t think it’s adequate for the injury you suffered. If you have an attorney, they may advise you on whether to accept a settlement. However, the final decision rests with you.
If you haven’t already hired an attorney at this stage, narrow your search to someone who has experience practicing in the court where you plan to file your lawsuit. They will be more familiar with the court procedures and staff than an attorney who regularly practices in different courts.
Your attorney typically will go over the complaint with you to make sure everything is accurate. Depending on your state’s law, there may be other documents that must accompany a malpractice complaint, such as a certificate of merit from another dentist who examined you, or a statement from the mediator if mandatory mediation is required.
Your attorney usually gives you a file-stamped copy of the complaint. Make sure you keep your copy in a safe place with your other original documents related to the case. Once the complaint is filed, it must be served on the dentist. Through this process, the court papers are delivered to the dentist, typically by a sheriff’s deputy or private process server.
The answer may be accompanied by a motion to dismiss. If your dentist does not believe your complaint establishes a legitimate malpractice claim, they’ll ask the court to dismiss it. There are other reasons a lawsuit may be dismissed, such as if you filed in the wrong court or if the statute of limitations has already expired. Your attorney will go over the dentist’s response with you. Depending on the nature of the dentist’s response, you may have to file additional documents with the court or go to court hearings.
Your attorney will schedule a deposition with your dentist, as well as any dental hygienists or other staff who were present during your treatment. Your dentist’s attorney will schedule a deposition of you as well. Typically you’ll need other dentists to serve as expert witnesses for your case. Your dentist’s attorney will want to interview any other dentists you plan to call as expert witnesses.
Your attorney may have multiple hearings and conferences with the judge to handle procedural issues associated with the trial. Your attorney also will prepare you to take the witness stand and answer questions about your treatment and the injury you suffered.
