Our Lawyer’s Guide to Dental Malpractice in Colorado

If you’re seriously injured from a dental procedure, you may be able to recover damages through a dental malpractice lawsuit. Even if the dentist did not intend harm, their negligence may have led to injury.

Whether it’s an injury, lost wages, or the death of a loved one, trusted legal counsel can help navigate a potential claim. Robinson & Henry, P.C. is ready to help. Our experienced dental malpractice attorneys fight for victims of negligence. Contact our dental malpractice lawyers for a case assessment.

What is Dental Malpractice?

Like doctors, dentists can be held liable if their negligence causes a serious injury. Dental malpractice occurs when the standard of care is not met and the patient is harmed.

A successful dental malpractice lawsuit in Colorado proves the following elements:

1. Existence of a duty – Implied by the dentist-patient relationship
2. A breach of duty – The dentist failed to meet the standard of care
3. Damages – The patient suffered an injury
4. Causation – The breach of standard of care caused the injury

Standard of Care

Standard of care is important in a dental malpractice case. However, there is no exact formula to determine what the standard of care is. It’s generally defined by asking:

How would the average dentist treat a patient with similar circumstances compared to the alleged malpractice? Did the dentist act with such low levels of skill or expertise that your injury should never have occurred?

The standard of care is the baseline for the quality of care expected of dentists. In malpractice cases, experts testify to the practice area’s standard of care.

Yesterday and Today

As medicine has evolved, so has how the standard of care is determined. In the late 19th century, medical malpractice cases became more commonplace. As the laws surrounding malpractice cases developed, so did the standard of care.

Keep it Local

In 1880, a landmark case created the framework for the “locality rule.” In some places, this rule still applies today.

The court ruled that small-town doctors likely would not have the same skills as big-city doctors. The court said rural doctors’ care should be compared to doctors in the same area. Colorado adopted the locality rule.

Modified Standard

Many years later, the same court overruled the locality rule. In 1968, the court said location should not be a factor when determining the standard of care. Instead, the court said to compare a doctor’s skills to other qualified doctors.

The court found there was better access to education and resources. It said these advancements would now be considered when determining the standard of care.
National Measurement

Opinions about how to measure the standard of care changed as access to medical technology and training improved. In 1985, another court said the benchmark should mirror national performance.

This ruling said out-of-state medical experts could testify in malpractice cases. The experts, though, had to be familiar with the services available to the local doctor.
Simply put, a national standard of care means the same training and the same diligence. It does not equate to the same facilities or same service.

A rural dentist should exercise the same care as an urban dentist. However, the rural dentist is not liable for being unable to provide the same services as an urban dentist who may have more advanced equipment.

Even in 2018, many rural dentist offices are not outfitted with modern equipment. Local economic constraints keep some rural dentists from updating x-ray machines or moving to the digital world. If this is the case, the dentist should refer the patient to a more equipped practice if necessary.

If a dentist does not use available equipment and a patient is harmed, they may have not met the standard of care. If a lawyer proves this, the dentist could be responsible for damages.

Expert Testimony and Standard of Care

When a client hires Robinson & Henry, we hire a dental expert to review their case.

Any licensed doctor can testify to the standard of care in Colorado if they are “substantially familiar” with the practice area. Colorado law prohibits doctors from testifying about different practice areas.

For instance, a brain surgeon usually would not testify about dental standard of care. There are exceptions. A specialist can testify about different specialties as long as they have vast knowledge in those areas.

Common Procedures and Causes That Lead to Liability

• Extractions
• Root Canals
• Lack of Informed Consent
• Dental Implants and Bridges
• Crowns
• Failure to Diagnose Periodontal Disease
• Orthodontics
• Anesthesia Complications
• Infections
• Adverse Drug Reactions
• Common Dental Malpractice Cases

Extractions

Tooth extractions are sometimes necessary to maintain good oral health. While pulling a tooth seems harmless, permanent injury is possible if you receive substandard care. Tooth extractions are the top reason Coloradans file dental malpractice lawsuits.

While common, extractions are not always routine. Wisdom tooth extractions, for example, are a frequently performed, but often complex, procedure.
These molars are near important nerves. The nerves can sustain an injury while numbing the mouth or removing the tooth.

Complications of Extractions:

• Nerve damage
• Sinus perforations
• Undiagnosed infections
• Broken jaw
• Wrong tooth removed
• Dental Implants, Bridges & Crowns

Dental Implants and Bridges

Getting a crown or other extensive dental work can be expensive and unpleasant. The work, though, is often necessary to save a broken tooth or replace missing teeth. If the procedure is incorrectly performed, the patient can experience painful, long-term injury.

Let’s say, your spouse recently had dental implants. Two of them have fallen out and others are loose. The dentist may have not identified a problem that would have made implants a bad choice. Under this example, there may be grounds to file a dental malpractice case.

Complications of Dental Implants, Bridges, and Crowns:

• Failed implants
• Infection at the surgery site
• Nerve damage
• Sinus perforations
• Tooth decay from ill-fitting crown or bridge
• Broken teeth due to stress from bridge

Failure to Diagnose

Dentists have to diagnose and treat issues that affect the teeth and mouth. During a checkup, dentists should examine patients for cavities and gingivitis. They also should look for more serious issues, like oral cancer and gum disease. When critical dental issues are not diagnosed, you can suffer irreparable harm.

A failure to diagnose could be the result of a dentist who is not familiar with an issue or disease. Or, the dentist may not have spotted the condition during an examination. It’s also not unheard of for a dentist to forget to report a problem to the patient.

Complications of Failure to Diagnose:

• Loss of teeth and gums
• Need for extensive dental work
• Infection
• Blood poisoning
• Delay in cancer treatment
• Wrongful death

Lack of Informed Consent

When a dentist orders a procedure, no matter how minor, they are bound by law get your informed consent.

Informed consent is more than a signature on a release form. In Colorado, dentists must make sure patients understand the proposed treatment. Unfortunately, this doesn’t always happen.

Patients have the final say about their dental health. And, under Colorado law, you have the right to make informed decisions about it. That means, if your dentist recommends a root canal, for instance, you should know:

• why do you need the procedure
• what will happen during the procedure
• the risks and benefits
• if there are alternatives
• the expected outcome

This information allows you to make a sound decision. If you don’t have all the facts, you can’t do that.

Informed consent means being able to make an educated decision. It also means permitting a procedure to take place.

Here are a couple of scenarios in which the dentist did not get informed consent:

1. You have a root canal without the dentist telling you anything about the procedure and its risks. During surgery, your dentist makes an error that leads to permanent nerve damage. You may have decided against the root canal if you’d known all the facts.

2. You go in to have a root canal knowing all the risks. During the procedure, your dentist works on another tooth without consulting you. As a result of the extra procedure, you are hospitalized with a severe infection.

In the second scenario, the patient may also have a claim of medical battery against the dentist. Medical battery refers to unauthorized contact during a non-emergency setting. Injury does not have to occur to result in a claim.

Informed consent lawsuits must prove harm may have been avoided if the patient was properly educated.

Failure to Refer to a Specialist

Dentists must refer patients to a specialist if they cannot treat a condition. If your dentist cannot address a problem for lack of time, facilities, or expertise, they must direct you to someone else. If the dentist fails to do this and you suffer severe harm they could be liable for damages.

Not All Dentists are the Same

• General dentists – go-to providers for dental exams, fillings, root canals
• Dental specialists – a general dentist who completes extra training in a particular area, e.g., prosthetics, oral radiology, oral surgery.

General dentists should not treat conditions in which they are not trained. For instance, your dentist discovers a suspicious lump in your mouth. A specialist should examine the lump. Instead, your dentist recommends you take a wait-and-see approach and does not give you a referral. If the condition worsens before you could see a specialist, you may have a malpractice claim.

Complications of Failure to Refer to a Specialist:

• Condition worsens
• Misdiagnosis of a condition
• Delay in treatment
• Wrongful death

Infections

Getting an infection following a dental procedure is fairly common. The mouth is full of bacteria. Hundreds of different species of bacteria, although not all harmful, live in the mouth. Anytime someone has dental work – a cleaning or a complex surgery – there is a risk of infection. That’s because the gums or lining of the mouth may sustain cuts.

Infections can also develop without having a dental procedure. If you have a cracked or decaying tooth, bacteria can accumulate in it and lead to an abscess. Abscesses can also occur when bacteria collect and grow under an ill-fitting crown. Infections also can form in damaged gums.

Most of the time, infections are easy to treat. There are times when an infection becomes more serious. A patient can end up in the hospital or suffer permanent injury if an infection is not properly treated.

Infection is one of the top reasons people file a dental malpractice lawsuit.

Complications of Untreated or Misdiagnosed Infections:

• Unbearable pain
• Tooth loss
• Infection advances to jaw bone
• Infection advances to joints
• Airway obstruction from abscess
• Brain abscess
• Permanent Injury
• Wrongful death

You may gotten an infection due to negligence. But that does not mean your infection will constitute a lawsuit.
Most infections result in temporary discomfort and do not lead to serious harm. These types of cases would not warrant the time or money spent to file a lawsuit.

If you believe your serious infection is the result of malpractice, take good notes.

• How do you think you acquired the infection?
• When was it diagnosed?
• What was the treatment, if any, you received?

These factors will help determine whether you have a claim.

Unnecessary Procedures

People usually trust their dentist when they say, “You’ve got to have this procedure done.”
Most dentists do not pull teeth or do root canals, for instance, for the sake of doing them. However, there are dentists out there who perform unnecessary dental work. When this happens, the patient is at risk of complications.

Accidents, Ethics, and Fraud
You may wonder how a dentist could perform unnecessary work on a patient. There are different reasons why unneeded dental procedures occur. Sometimes it happens from an honest mistake. A dentist may misdiagnose an issue or even work on the wrong tooth.

Then some unethical dentists knowingly prescribe unnecessary treatments. They may do this to meet quotas or receive extra payments from insurance companies.

For example, a dentist went to jail for performing unnecessary work on several clients. In one instance, the dentist ordered 16 fillings on a teenage girl. After the girl received eight fillings, her father consulted other dentists. The other providers found no evidence of cavities.

The dentist in this case violated the standard of care since no other practitioner would have ordered or performed the fillings. Unnecessary procedures, whether intentional or by accident, can result in serious complications.

Complications of Unnecessary Procedures

• Risk of infection
• Chronic pain
• New dental issues
• Nerve damage
• Wrongful death

Permanent Damage from Dental Malpractice

Nerve damage is the most common type of permanent injury people get from a dental procedure. Permanent nerve damage can be the result of dental malpractice. Nerve damage can cause face pain or loss of taste, among other symptoms. Permanent nerve damage can greatly affect one’s quality of life.

Two nerves receive the most injuries during dental procedures. They are the inferior alveolar nerve and the lingual nerve.

• The lingual nerve supplies the sense of taste and touch to most of the tongue and areas around it. Damage can even happen during local anesthesia administration.
• The inferior alveolar nerve supplies sensation to the lower teeth. It is most often damaged during wisdom teeth extraction.

Symptoms of Nerve Damage:

• Impaired speech
• Numbness, tingling, or burning sensation in the chin, lips, and gums
• Sharp face pain
• Loss of/altered taste
• Numb tongue
• Drooling

Causes of Nerve Damage

Anesthesia

A dentist can damage nerves when they give a shot of local anesthesia. The needle the dentist uses for the injection can traumatize the lingual nerve. Sometimes, nerve damage can occur from the anesthesia itself. Anesthetics that contain alcohol are considered “toxic.” Experts say the alcohol can damage or destroy the nerve’s protective covering.

Extractions

The lingual nerve and inferior alveolar nerve are close to the wisdom teeth. Removal of these molars carries some risk of damage. Surgical extraction carries a higher risk of nerve damage compared to pulling the tooth.

The more embedded the wisdom tooth, the more difficult it can be to remove it. And that increases the risk of complications, like nerve damage.

Implants

Dental implant surgery requires careful planning. The oral surgeon must determine the location of the nerves. Imaging assists with this task.

The surgeon increases the risk of complications if they do not get scans before surgery. For example, the dentist could screw the implant post too close to the nerve or penetrate the nerve canal. This can cause permanent injury.

The good news: More than 90 percent of the time, nerve injuries resolve on their own within a month or two of the procedure.

Surgery can also sometimes repair nerve injuries. Serious injuries, though, such as a severed nerve, may be irreversible.

Not all nerve damage is the result of malpractice. It is sometimes unavoidable despite the best efforts of a diligent practitioner. Other times, a dentist can breach the standard of care, and the patient suffers harm due to negligence.

Anesthesia Complications

On the surface, dental surgery may feel less risky than other outpatient procedures. The truth is, mismanaged anesthesia can be deadly whether on the operating table or in the dentist’s chair. Death is rare during oral procedures, but serious complications can arise from neglect.

When someone needs oral surgery, most of the time they’ll be deeply sedated. In a few instances, they will receive general anesthesia.

What’s the Difference? IV Sedation and General Anesthesia

IV Sedation – The patient breaths on their own, and they can still respond to the dentist. Deep sedation is sometimes called conscious sedation.

General Anesthesia – The patient loses complete consciousness. General anesthetic drugs can affect heart rate and blood pressure. The patient’s breathing often needs assistance from a ventilator.

It’s the Law

Patient safety is paramount during sedation.

In Colorado, dentists must be trained in general anesthesia and conscious sedation to sedate patients. The law requires dentists to be able to recognize and treat emergencies. Dental facilities must also have equipment to prevent and respond to complications.

The dentist’s office should get the patient’s current and past medical history before sedation. This ensures doctors give the correct drugs and dosage, reducing potential injury.

Wrongful Death

It’s a horrible scenario to think about: your loved one dies from a dental procedure.

Most people do not associate the term “wrongful death” with the dentist’s office. Unfortunately, neglect or misconduct can lead to the loss of your or your loved one’s life.

Wrongful death can happen when a dentist doesn’t properly treat an infection, diagnose cancer, or ignore signs of stress during sedation. Let’s say your loved one saw their dentist for a painful tooth. An abscess was present, but the dentist delayed treatment. As a result, the infection spread to your loved one’s bloodstream, and they later passed away.

Or, your loved one was not monitored during sedation. They stopped breathing and never regained consciousness.

These deaths could be the result of malpractice.

It’s Probably Not Dental Malpractice

Malpractice happens when a negligent dentist injures a patient. Common examples of dental malpractice are failure to diagnose, lack of specialist referral, and improper tooth extraction.

Sometimes a dental injury due to negligence will not warrant the time and money needed to file a lawsuit. Injuries like permanent nerve damage, loss of teeth, and infection leading to hospitalization could justify a lawsuit.

A poor bedside manner is generally not enough to support filing a claim. Here are some examples that, most of the time, are not grounds to file a lawsuit.

How Rude!

Most of your time spent at the dentist’s office is with someone other than your dentist. A rude receptionist or dental hygienist can put a damper on your bi-annual check-up.

You may have said, “Gosh, that new dental hygienist wasn’t as friendly as Rita who used to clean my teeth.” A pleasant staff member can take the edge off during your appointment, but an abrasive one doesn’t constitute negligence.

Hurry Up, and Wait?

In a world where instant gratification is the norm, a long wait time can make you steamed. As irritating as delays can be, a routine dental appointment that is not on time is not a reason to sue.

Feel the Rush…

My dentist didn’t spend enough time with me. Can I sue him/her? Usually not.

The time patients have with their doctors seems to be less and less these days. Often it is obvious your dentist is in a hurry to get through your exam and move on to the next client. Unless your dentist is so rushed they fail to diagnose a critical issue, then you likely do not have a case.

I Don’t Like It!

The outcome of dental work is generally not guaranteed. Most lawyers would not take a case where someone just doesn’t like the results of some dental work.
Let’s say you took the plunge to restore your smile with dental implants. You were excited about the procedure until it was complete. Afterward, the way the implants look is not exactly what you expected. The reality is, that simply not liking the results is not automatic grounds to sue your dentist.
How to Avoid Dental Malpractice

Mistake-Prone Procedures that Often Lead to Dental Malpractice

Most of the time, dental work occurs without any complications. Here are common procedures that carry the highest risk for dental malpractice claims:

• Extractions
• Root Canals
• Dental Implants and Bridges
• Crowns
• Orthodontics

Why You May Consider Hiring a Dental Malpractice Attorney

As this article notes, dental malpractice lawsuits can be complex. Navigating the case on your own can be daunting. Doing so can also put you at a disadvantage of recovering damages.

Getting a lawyer will strengthen your case. They will hire a dental expert to investigate your injury and the dentist’s care. A seasoned malpractice attorney will reduce your stress and let you focus on what’s most important: your health.

What to do if You Believe You’re a Victim of Dental Malpractice

Seek Medical Attention – See another practitioner who can treat the injury.

Document the Incident – Create a timeline, request your medical records, and take pictures of the injury.

Keep a Journal or Calendar – Track your symptoms, missed days of work, and other medical care.

Speak with an Attorney – Find an experienced dental malpractice attorney.

Let the Lawyer do the Talking – Don’t talk to the dentist or their insurance company about the case. If the other party contacts you, point them to your attorney. Do not answer any of the dentist’s or insurance company’s questions.

Choosing the Best Dental Malpractice Lawyer for You

If a negligent dentist injures you or a loved one, the stakes are high. You will want an experienced dental malpractice lawyer who knows the state’s malpractice laws and procedural steps.

Your first inclination may be to ask a friend or family member for a trusted recommendation. Or, you may go straight to the Internet. Both are acceptable ways to connect with a prospective attorney. There are great resources online to help strengthen your search and vetting process.

Online Research

What to look for: bar admissions, professional awards, publications, and community outreach. These point to a credible attorney.

Once you find a lawyer you want to meet with, make sure they are licensed to practice law. You can do this through a simple attorney search at the Colorado Supreme Court website. This website also keeps track of any disciplinary record the lawyer may have.

Meeting with the Lawyer

Be prepared. Take important documents that will help explain your potential dental malpractice claim. These documents could include:

• Dental records
• Documentation of additional treatment for the injury
• Medical bill statements
• Pictures of the injury

Be the interviewer. Remember, you are hiring them. This is your chance to ask questions and get a good feel for the lawyer.
Look for the three C’s: Competence, Communication, Compatibility

You will want a dental malpractice attorney who is competent and a good communicator. When you meet with them, pay attention to how well they listen to you and how well they explain things. Are their answers full of legalese, or does it all make sense? Are they upfront with you about your case?

Ask questions. Don’t be shy to ask questions or speak up if you need something clarified. Here are some good questions to ask a prospective dental malpractice attorney:

• How long have you practiced malpractice law?
• What other areas do you practice?
• What’s your payment structure?
• Do you charge a contingency, hourly rate, or a flat fee?
• How involved will a paralegal be in my case? Will this help reduce my fee?
• What do you think the dentist’s defense will likely be?
• How much am I likely to recover, if anything?
• Do you think I could settle out of court?
• How long do you think it will take to resolve my case?
• Given my case, what is the cost estimate?

The Hard Truth About Dental Malpractices Claims

Multi-million-dollar malpractice jury awards make for good news stories. What doesn’t make headlines is that most of the time the patient loses at trial. National studies report a plaintiff win rate of about 25 percent. That’s the lowest plaintiff success rate of all tort litigation.

In Colorado, the number of paid malpractice claims has also declined since the 1990s. Laws to prevent frivolous lawsuits and place caps on damages could be behind the trend. As you can see, it is critical to get a malpractice attorney who can accurately assess the merits of your case.

This isn’t meant to discourage you from pursuing a claim against a negligent dentist. It’s meant to paint a realistic picture of malpractice lawsuit litigation outcomes.
More than 90 percent of the time, a malpractice lawsuit will settle before it goes to trial. There are two sides to this coin. Malpractice cases settled out of court recover fewer damages than those that go to trial. However, avoiding a trial generally cuts down on the amount of time spent on the case. This can help reduce legal fees.

What Goes into a Dental Malpractice Case

Dental malpractice cases can be complex. These cases, which involve both science and the law, can be expensive and take years to settle or go to trial. The complexity of the case will determine the time it will take to resolve.

Here’s an overview of the process:

• Case Assessment – Your lawyer determines whether there’s a legal claim.
• Expert Weighs In – A dentist, usually in the same area of practice as the defendant, will review your claim, including medical documents, to determine if your injuries were caused by negligence.
• File the Complaint – If your lawyer and the expert believe you have a case, your attorney will file a complaint that will describe the alleged malpractice.
• Certificate of Review – Within 60 days of filing the complaint, your lawyer must submit a certificate of review to the court. This paperwork indicates a dental expert was consulted and finds there is a basis for the claim. This step is meant to weed out frivolous lawsuits.
• Discovery – Each party investigates the legal claim, asks questions, and takes depositions of witnesses, usually beginning with the patient and the dentist. This phase can take more than a year.
• Possible Settlement – You can agree to try to settle the case out of court. More than 90 percent of malpractice cases settle out of court. Going to trial is expensive and can drag on for years.
• Trial – If a settlement cannot be reached, a trial date will be set. Be prepared for the trial to last a week or more depending on the complexity of the case. A settlement can be reached with or without a professional mediator, and one can still be agreed upon during trial.

How Long Do I Have to File a Lawsuit?

In Colorado, time is of the essence. The statute of limitations to file a claim is two years from the injury date. However, there are some exceptions:

I Found the Injury Later

What if I didn’t know about the injury right away? State law makes an allowance for this called the “Discovery Rule.” This rule says the statute of limitations does not begin until the discovery of the alleged harm.

Children and Minors

Parents have until a child turns eight years old to file a lawsuit for alleged malpractice. The injury must have occurred when the child was younger than six years old.

Final Deadline to File

The absolute deadline to file a medical malpractice claim in Colorado is three years. This is called the Statute of Repose. That means, regardless of when you discovered the injury, you have only three years to file a lawsuit.

These scenarios override the final deadline:

• the dentist knowingly covered up the alleged malpractice
• a foreign object is left in the body
• the patient could not have known of the injury or how it happened by exercising “reasonable diligence” (reasonable diligence means the steps a logical person takes to investigate potential complications)

How Much Could I Recover for Dental Malpractice?

In some states, courts have ruled malpractice damage caps unconstitutional. That’s not the case in Colorado. The state still places limits on how much a plaintiff can recover from a malpractice lawsuit. First, let’s look at the type of damages you can recover: noneconomic, economic, and punitive.

Noneconomic – physical and mental pain and suffering, loss of enjoyment of life

Economic – medical bills, lost wages, other bills

Punitive – damages meant to punish the practitioner

The state caps noneconomic damages to $300,000. Total damages, noneconomic and economic combined, are not to exceed $1 million. A court can order higher damages if there is “clear and convincing evidence” that $1 million is unfair.

For example, an injury results in long-term medical costs that would far exceed $1 million. A court may increase the amount of the award beyond $1 million. Punitive damages are limited to the amount of total damages.

Common Pitfalls of Dental Malpractice Cases

Signing a Litigation Waiver – There is often a lot of paperwork to sign before having a procedure. Read it carefully. Waivers can include a clause that removes your right to trial in the event of malpractice. When you sign, you may be agreeing to arbitration.

Arbitration proceeds like a trial, but a neutral person (an arbiter), instead of a jury, decides the case. The language of a litigation waiver must be clear and obvious to the patient.

Not Doing Your Part – As a patient, you are also responsible for your health. In Colorado, a court can assign percentages of blame to each party in a malpractice lawsuit. If you share 50 percent or more of the blame for your injury, you will not be able to recover any damages. You also face a reduction in damages based on your percentage of blame.

For example, if you are 25 percent at fault for your injury, you will only recover 75 percent of the awarded damages.

Examples of Patient Fault:

• Not following the dentist’s orders
• Falsifying or not disclosing medical history or medications
• Aggravating the injury

Waiting to Assess Possible Injury – Here’s where “reasonable diligence” comes into play. Let’s say you notice some issues after a dental procedure, but you don’t see a healthcare provider about them for a year. When you finally get medical attention, a doctor confirms an injury.

A judge can dismiss your case if it can be proven your injury would have been detected sooner if you’d acted sooner. Settling Before Speaking with a Lawyer – Call an attorney if your dentist’s office pressures you to settle. You could be entitled to more damages for your injury than the dentist’s office will offer. A lawyer can help you better understand the potential damages you could recover.

Throwing Away Medical Bills and Receipts – Err on the side of caution and keep everything. Save medical statements, bills, and receipts for dentist, hospital, and other doctor or specialist visits. Also, retain receipts for prescriptions you may have filled.

Malpractice Resources
Colorado Health Professional Check
Colorado Supreme Court
Glossary of Dental Terms
Metro Denver Dental Society

Contact Us for A Case Assessment

Our dental malpractice attorneys can help you determine if your case is worth pursuing. To set up your case assessment, call (303) 688-0944 or schedule online.