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Plaintiff's Burden of Proof

The burden of proof is upon the plaintiff/injured party to prove the dentist was negligent during the dental procedure that caused the injury to the inferior alveolar nerve or the dentist's post-operative care resulted in injury. The issues of proof will be influenced by the nature of the injury i.e. anesthesia, paresthesia, dysesthesia. Here are some of the considerations to determine if there is a basis for a claim against a dentist for the negligent injury of the inferior alveolar nerve:


a. Is there a signed written consent form listing the risks of nerve damage; 

b. Are there timely and adequate x-ray studies of the teeth involved in the dental procedure both before and after the procedure. Do the pre-treatment radiographs completely visualize the teeth the dentist worked on and their important surrounding anatomical landmarks (see Cone Beam CT or CBCT below);

c. Was this a high risk extraction that should have been referred by the general dentist to  an oral surgeon. Is the third molar fully erupted, partially erupted or fully impacted.  What is the position of the tooth and where is in located in relationship to anatomical landmarks. An extraction that results in injury to the lingual nerve and the inferior alveolar nerve indicates poor surgical technique;


d.Was this a high risk implant procedure that should have been referred by the general dentist to an oral surgeon or periodontist for the placement of the implants. Were there adequate bone levels before the implants were placed. What is this dentist's experience level with placing implants;


e. Was improper technique used, resulting in improper measurement of the implant  length or resulting in a fracture of the mandible;


f.  Often the dentist says the dental procedure was straight forward and went smoothly without incident, so the length of time that the procedure actually took may be an indicator that the dentist is had more difficulty with the procedure than reported;


g. Did the dentist properly treat the acute nerve inflammation post-operatively and follow the healing of the nerve injury or lack thereof with nerve mapping to    determine if there is any improvement in the nature and/or distribution of the patient's symptoms (See Image 6b above). Sometimes the territory of numbness or neuropathicpain becomes smaller over time and if it does not; the dentist may be required to makeappropriate referrals (see h. below);


h. Did the general dentist/oral surgeon timely refer the patient to an oral-facialpain specialist to treat the patient's neuropathic pain before the problem became worse? Did the dentist refer the patient to an oral surgeon trained in micro-surgery to timely present the patient with the options of nerve decompression microsurgery (removing a hematoma, scar tissue or anything that impinges on the nerve) or nerve re-anastomosis microsurgery (suturing the severed lingual nerve ends together);


i.  Does a subsequent Cone Beam CT (CBCT) or exploratory surgery by a microsurgeon confirm the location and nature of the inferior alveolar nerve injury. If the CBCT  demonstrates that the mandibular canal has been violated or if the surgeon directly visualizes the injury to the inferior alveolar nerve, the defense will not be able to argue  that the standard of care mandibular block (local anesthetic) caused the patient's  inferior alveolar nerve injury symptoms


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