Working With an Expert Witness to Identify Dental Negligence and to Pursue or Defend a Lawsuit

Jeff Rabinowitz

Dental Expert Witness

Post Publish Date

June 10, 2022

Post Categories

Dental malpractice suits are common—but they’re rarely straightforward. It can be difficult to prove beyond a reasonable doubt to a judge or jury that a dentist’s negligence directly caused a dental injury to the plaintiff, just as it can be difficult for a dentist accused of negligence to defend against the claim. Malpractice claims require a thorough analysis of whether the appropriate standard of care was observed, and whether the defendant possessed sufficient knowledge of the patient, their conditions, or the treatment at the heart of the suit.

Consulting with an experienced dentist who has specialized knowledge pertaining to the case can provide vital support for your legal argument as a patient. The same holds true for the dentist being sued for malpractice. That’s why it’s critical to retain a dental expert witness who can analyze the facts of your case and back them up in court. Below, I’ll explain in detail what dental malpractice is, what expert witnesses do, and how we can help you find out whether your case is worth pursuing as a patient or how to best defend as a practitioner.

What is Dental Malpractice?

Dental malpractice (also called dental negligence) exists when the actions of a dentist or their practice can be found to have caused injury to a patient. It can happen for numerous reasons. Here are some of the most common:

  • A dentist performed a procedure beyond their skill, training, or experience level
  • A dentist was qualified to perform a procedure but did so in a way that was inappropriate or irresponsible
  • A dentist failed to diagnose a condition during an appointment
  • A dentist performed unnecessary dental work on a patient
  • A dentist did not perform proper follow-up care after working on a patient
Lawyers talking to client about malpractice suit

Via Pexels

Dental malpractice can look like injuries sustained during:

  • Anesthesia, Including Nerve Injuries
  • Tooth Extractions
  • Oral Surgery, Including Wisdom Teeth
  • Cosmetic Dentistry Procedures
  • Restorative, Prosthodontic, and Crown Treatments
  • Root Canal Therapy
  • Dental Implants

Symptoms of these injuries may include nerve damage (such as trigeminal neuralgia), infections, jaw fractures, and more. However, such injuries are not always the result of dental negligence. Furthermore, due to the vast scope of injuries that may constitute dental malpractice, attorneys must approach these suits carefully and define malpractice in very specific terms.

What Constitutes Malpractice for an Attorney?

To make an effective case that dental malpractice took place, an attorney typically needs to establish all of the following:

  • Duty: that the defendant (i.e., the dentist) had a duty of care to the patient
  • Breach: that the standard of care was breached by the dentist or their practice
  • Damages: that the patient sustained a dental injury
  • Causation: that the breach in the dentist’s standard of care was causal to the patient’s injury

In this case, duty of care means a legal obligation on the part of the dentist to observe a reasonable standard of care when performing dentistry on a patient. Standard of care can be defined as what is necessary in order to provide reasonable treatment for the patient within a reasonable period of time.

As new research and techniques in dentistry emerge, the standard of care continues to evolve. This means that clearly establishing the standard of care for any given case often requires current and specialized knowledge of dentistry—making the support of an expert witness even more important.

Dentist performing operation on patient that may cause injury

Via Pexels

How Can a Dentist Be Sued for Dental Malpractice?

There’s no law preventing a patient from suing a dentist for malpractice—the question is whether or not the case is strong enough to succeed. Establishing the standard of care for a given dental procedure strongly enough to convince a judge or jury is difficult enough on its own. Proving that the dentist breached that standard is another matter entirely.

Finally, remember: proving that one has an injury (i.e. damages) isn’t enough—one must also prove that the dentist’s breach of the established standard of care caused those injuries. That’s usually the hardest part of winning a dental malpractice suit, and it’s another reason a patient should consult a dental expert witness before filing a lawsuit. It’s also a reason why a dentist should consult with a dental expert witness before defending against a lawsuit.

What Do Dental Malpractice Expert Witnesses Do?

When I’m advising on a malpractice case, whether I am representing the patient or the dentist, there are many different tasks I might perform. These include consulting with the patient or the dentist, reviewing evidence, analyzing the facts of the case, providing advice to you and your attorney, being deposed, and testifying in court.

What Is Working with a Dental Malpractice Expert Like?

Here’s how a dental expert witness like me can support you in each stage of your malpractice case:

  • Consultations: you’ll confer with me and we’ll discuss the facts of your case. Before the initial consultation, you will be asked to furnish specific documents showing the details of the treatment and the nature of the complaint and the issues. Copies of receipts, contracts, and patient records are examples. If we agree that you and your legal representation will be retaining my services as an expert witness, I’ll provide an engagement letter and information on my rates.
  • Reviewing evidence: Next, I will review the facts of the case to determine whether a reasonable case exists. This involves examining any statute of limitations for dental malpractice claims in your state, reviewing the treatment and post-operative course, reviewing any injuries, identifying dental and/or dento-legal issues, and using my in-depth knowledge of dentistry and oral surgery to determine whether there could be a causal link between the diagnosis/treatment rendered and the patient’s  postoperative and/or current condition.
  • Analysis: During this stage, I’ll go over the detailed treatment records and facts of the case  and look for the most compelling evidence supporting the pursuit of either a patient’s claim or the defense of the accused dentist. I’ll also coordinate with your attorney to ensure your legal representation will frame that evidence clearly when filing your suit.
  • Writing reports: my expert report will contain details on the facts I’ve found when reviewing the case and my professional opinions on those facts. The report provides written justification for my conclusions, and is key to supporting your plaintiff or defense argument.
  • Advising: as an expert witness, I am able to help your attorney and you understand the likelihood of your case moving forward at various stages. This can also be instrumental in helping to navigate a settlement when that course is appropriate.
  • Depositions and testifying: while your case is in the discovery process, I provide my testimony in a deposition. For dental malpractice suits that go to trial, I may also take the stand to deliver my testimony in court. This testimony can be vital for convincing a judge or jury to accept your interpretation of the standard of care in your case. It can also solidify the reasoning that supports your pursuit of a finding of malpractice by the practitioner or the reasoning that supports the finding that the treatment rendered by the doctor and the outcome were within the standard of care.

Find Out Whether You Have a Case

If you have sustained injuries that you believe are the result of dental malpractice, or have been accused of malpractice as a dentist, your first step should be to contact an attorney. They’ll tell you what procedures need to be followed before your case will go to court, and will help you take the necessary steps (including obtaining any necessary affidavits for your state).

The next step will be for you and your attorney to contact and retain a dental expert witness who can assist you from the discovery process onward. Schedule a consultation with me today and let me look closely at your case so we can determine how best to proceed.

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dr Jeff Rabinowitz

Jeff Rabinowitz

After earning his Bachelors and Doctoral degrees from the University of Pennsylvania, Dr. Rabinowitz completed residency training at the Mount Sinai Medical Center in New York City. He subsequently completed Fellowship training in Implantology and Periodontics at New York University and in Parenteral Conscious Sedation at St. Joseph and Brookdale Medical Centers. He established a multi-specialty group practice in Manhattan, he taught at Mount Sinai and he has pursued years of extensive advanced education programs and has maintained an active practice in implantology, complex restorative and prosthodontic care, periodontics, oral surgery, bone and soft tissue grafting, Invisalign and cosmetic dentistry. Dr. Rabinowitz holds a faculty appointment, teaching dental students at Touro College of Dental Medicine.

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