Personal Injury

Dental malpractice lawsuits part 1

By Tony Poland, Associate Editor

In the first instalment of a two-part series, Fredericton personal injury lawyer Matthew Pearn discusses how to recognize a dental malpractice claim.

It’s important to do “your homework” to have success in a dental malpractice lawsuit, Fredericton personal injury lawyer Matthew Pearn says.

“The nature of dental malpractice claims is that they're fairly complicated and proof is always a challenge,” says Pearn, associate with Foster & Company.

Malpractice suits can come in many forms, he tells, including claims for failure to diagnose oral diseases or cancers, anesthesia or Novocain complications, nerve injuries, issues with bridges and crowns, infections, tooth extraction problems and root canal injuries.

“A dental malpractice claim is very much like a medical malpractice claim. It's a question first of whether there was a medical error,” Pearn says.

“When someone has an unexpected outcome from a surgery, or has been diagnosed with something that would be treatable if it was caught earlier, it sometimes points to the treatment provided by a dentist, orthodontist, periodontist or some sort of dental specialty.”

He says he looks for that “bad outcome that a professional supervising your care might have caught.”

Pearn says he will ask if there was an initial assessment to determine the patient’s health.

“For example, are you a lifetime smoker or drinker? Should they have you pre-screened for oral cancers?” he says. “If you've had dental surgery were you provided with a risk assessment to start, and an explanation of the risks related to the dental procedure?”

It’s important to separate discomfort following a procedure from a chronic injury suffered while being treated, Pearn says.

“If someone is continuing to receive treatment in the presence of pain, that's unusual. If you're experiencing chronic pain, that should trigger the professional to stop the treatment and investigate what's going on,” he says.

Pearn encourages parents to give credence to any pain their children suffer after a visit to the dentist.

“One of the things people overlook is the number of children who are in care for orthodontics and the potential for those routine appointments to potentially cause harm,” he says. “When you’re treating a large population of young people, sometimes their complaints are not heard as clearly as adult complaints. Think about the volume of children who had braces over their lifetime and that creates a large population that could be injured by medical mistake on the part of the dental professional.”

Pearn says it’s necessary to determine who was administering the care that led to the claim, adding the “level of attention and care that's offloaded to clinic staff, as opposed to the professional, creates an opportunity for error.”

“If they're supervising the care, the professional still has responsibility for managing and training their staff and monitoring their work,” he says.

Pearn suggests parents watch their children for changes in mood or ongoing pain associated with a dental procedure and request X-rays or imaging if the discomfort persists.

With any claim, finding “a causal connection between the damage caused and the injury suffered is one thing, but you also have to consider the corresponding duty of care to the patient,” he says.

“If you deviate from the standard of care, if your breach of duty causes an injury, then you are liable for that,” Pearn says.

Stay tuned for part two of this miniseries, where Pearn will explain the steps a person should take when suing a dental professional.

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