What Makes a Malpractice Claims Difficult to Pursue?

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who explained that he wanted to sue for dental malpractice. He had gone into his dentist’s office to have a tooth pulled, and he came out with the wrong tooth pulled. He wanted to know if he could sue.

Though one person can sue another person at any time, the real question is would a lawsuit be successful?

By successful, we mean does the anticipated recovery from the litigation outweigh the cost of pursuing the litigation.

Imagine you are supposed to have your right knee joint replaced, and the surgeon operates on a perfectly healthy left knee. Most people would be calling an attorney immediately.

While the case of doing surgery on the wrong knee seems similar to pulling the wrong tooth, the two cases are far different.

Doing surgery on the wrong knee will be easier to prove. It will also likely lead to a recovery that outweighs the cost of litigation.

The case recovery will likely outweigh the cost, because the consequence of the surgery on the wrong knee will be significantly. You lost your good knee. You’ll still need surgery on the bad knee. Your ability to walk and work may be seriously impacted. The medical expense will be high. The pain and suffering will be major. The therapy and rehab will be major.

To win a lawsuit against a dentist when you allege that the wrong tooth was pulled, you must prove substandard care. You have way more than two teeth. Proving the wrong one was pulled may not be easy.

What proof do you have that the wrong tooth was pulled?

Perhaps x-rays taken before the pulling of the tooth show that a different numbered tooth was decayed and should have been pulled. Maybe those x-rays show that the extracted tooth was healthy, and perhaps the x-rays reveal that the extracted tooth was also decayed.

But is x-ray proof enough? In most cases, the tooth that was pulled has not been retained. That tooth would be strong proof that it should not have been removed if it was available to test and examine after extraction.

Why? The dentist will argue the extracted tooth needed to be pulled regardless of what the patient was told beforehand. Or that the patient misunderstood which tooth was to be removed.

But the real question is: what value would a jury place on the pulling of a healthy tooth that should not have been pulled? Part of that calculation would be: does the tooth that should’ve been pulled still need to be extracted? If so, what further cost is associated with removing it?

The cost of proving malpractice against a dentist could easily well-outweigh the value that a jury would assign to the loss of the tooth, especially if it is a tooth that isn’t readily visible. Or a tooth that can be easily replaced with a prosthetic. Once a tooth is pulled (wrongly or rightly), the pain will go away. There will be no loss of work. No risky surgery or lengthy hospital stay.

What we find in most situations is that after you pay for experts, which can cost between $10,000 and $15,000, to give an opinion as to whether the tooth extraction was performed negligently, the cost of proving a case far outweighs whatever a jury would award if the patient is successful.

That’s not to say that having the wrong tooth pulled is a good thing. It is not. It is just frequently too costly to pursue in court.

All of these factors go into the calculation that needs to be made when you speak to an attorney.

That said, certain types of dental malpractice situations can result in serious injuries and justify pursuing malpractice. These cases would include:

– a nerve is severed, cutting off feeling to part of the face and jaw

– the sinus cavity is punctured resulting in a severe infection leading to loss of the jaw bone

– surgery is performed without checking if the patient is on blood thinners leading to significant bleeding

– an infection results from a botched root canal therapy where no steps to mitigate infection were taken

– the dentist intentionally misdiagnoses the need to remove all teeth just to sell unnecessary treatment (yes, we have seen this happen)

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”