Should I Sue?
If you do not trust the negligent dentist to make the necessary repairs or this dentist refuses to make these repairs, a dental malpractice lawsuit may be your only reasonable option. Dental malpractice litigation is expensive and therefore your dental malpractice attorney will need to advise you on whether the settlement value or value of your case in a jury trial will be worth filing a dental malpractice lawsuit. In short, does the patient's dental malpractice claim involve a significant dental injury or significant cost to repair the negligent dentistry. This question is one that only an experienced dental malpractice attorney can answer, but here are some important considerations:
A) Significant Dental Injury
A significant dental injury involves either a significant permanent dental injury which cannot be fixed or negligent dental treatment that will be expensive to repair. Some examples of permanent dental injuries would be wrongful death, nerve injury (lingual nerve, inferior alveolar nerve and trigeminal nerve), loss of teeth or TMD (temporomandibular joint dysfunction). If the negligent dental treatment will cost more than $10,000 to repair, the dental injury may be economically worth pursuing.
1] Small Claims Court
A bad crown or root canal that can be repaired is best pursued in small claims court. To pursue a dental malpractice claim in small claims court, you will need a report from a dentist that identifies why the dental work is negligent and how much it will cost to repair the negligent dentistry.
2] Peer Review
A claim before the negligent dentist's professional peer group will only return the money you paid the negligent dentist, at best. This may be inadequate to pay for the subsequent repairs required by the negligent dentistry. The finding of the dental society is only binding on the member dentist if the dentist wants to remain a member of that group in good standing. Since the dental society is not concerned with your statute of limitations and their final verdict may come after your statute of limitations has run, you will have no recourse if the negligent dentist quits the group after the unfavorable ruling or the panel of dentists rules against you.
B) Cost of Litigation
The average cost of a dental malpractice case that goes to trial can exceed $20,000, therefore a dental malpractice claim needs to be evaluated in light of the likelihood of resolution before trial. An experienced dental malpractice attorney resolves the vast majority of his cases before trial, but must be prepared to take every case to trial.
C) Consent To Settle
No dental malpractice claim can be settled without the written consent of the negligent dentist. This is the primary reason that I recommend against the filing of a complaint with the California Dental Board before filing a dental malpractice complaint in superior court. Dental malpractice litigation should provide the negligent dentist, the defense attorney and the professional liability insurance company with a compelling case that dental malpractice has been committed. If the negligent dentist is concerned about how your claim is going to impact a future California Dental Board investigation, written consent may not be forthcoming or may be delayed.
In 1975, under the pretense of skyrocketing malpractice claims, professional liability insurance companies radically increased the cost of professional liability insurance coverage for doctors, dentists and other health care providers. As a result, the California legislature passed the California Medical Injury Compensation Reform Act (MICRA) of 1975. At California Civil Code Section 3333.2, MICRA caps “general damages” for pain and suffering, emotional distress, and loss of companionship, at $250,000 (Figure 2). “Special” or “economic” damages, such as lost wages, extra costs, and repair or replacement, remain unlimited. Under MICRA, contingency attorney fees have also been limited (Figure 3). The combination of these factors have acted to limit the number of attorneys who have continued to devote a majority of their law practice to these claims.