A reader reached out with this question: My dentist removed my wisdom teeth and accidentally severed a nerve. As a result, I cannot feel or taste on one side of my mouth, and I’ve noticed many other issues since the procedure. Can I sue him for dental malpractice, even if he passed away 10 days after he performed my surgery?
The short answer is: Yes, you can sue your dentist for medical malpractice for a procedure gone wrong, even if the dentist passed away.
Like every other case involving legal and medical issues, your malpractice claim’s success relies on a variety of factors. In this case, there’s the added complication of the dentist’s death shortly after the procedure.
Talking to a qualified medical malpractice attorney is the only way to know if you have a valid case. But there are some considerations that apply to most medical malpractice cases we’ll review here in light of this question.
When Can I Sue My Dentist for Malpractice?
Any time you suffer pain and other damages because a medical professional fails to provide the standard of care. This rule applies equally to doctors, hospitals, dentists, etc. In most cases, this counts as medical malpractice. If it involves a dentist, dental surgeon or dental assistant, this counts as dental malpractice.
How Do You Prove Dental Malpractice?
Like any other legal issue, you must prove certain elements or circumstances for a successful dental malpractice case:
- An established duty of care must exist. This means you must be the dentist’s patient before you can sue (i.e. you can’t file a dental malpractice claim against a dentist you’ve never seen).
- You must prove your dentist did not meet the community standard of care. This can mean other dentists would treat you in a way that did not injure you or produce damages. For example: A typical dentist may have diagnosed an infection post-procedure and prescribed antibiotics to prevent further injury. However, yours did not.
- You must also show how the dentist breached that duty and how it harmed you. A breach is any action (or inaction) that fails to meet the standard of care. Just like the previous example, if you develop an infection after a procedure and the dentist didn’t diagnose or treat it, that is a breach of duty. In other words: An infection that gets worse and leads to further injury in this instance is 100% preventable and damages you, the patient.
- Damages make up the final element of any successful malpractice claim. You, the claimant, must show how your dentist’s actions (or failure to act) harmed you. Damages can range from extra medical bills to lost wages as well as pain and suffering as a result of your dentist’s actions.
If those elements can be proven, there is likely a case for medical malpractice.
Can I File a Dental Malpractice Claim After My Dentist Dies?
The short answer about whether you can sue a deceased medical professional: Yes. You can sue a medical professional’s estate after he or she passes away. However, laws and requirements can vary from state to state.
You must also consider the statute of limitations, which limits your time to file a medical malpractice case. This deadline also varies from state to state, though most have a few exceptions.
Should I Talk to an Attorney?
All these factors mean that every medical malpractice case is unique. Without knowing the details of the case and relevant state laws, it’s impossible to provide legal advice online.
For this reason, it’s imperative the reader who asked this question consult with an attorney immediately. That’s the only way to determine how long they may have to file a case and how likely they are to win a cash settlement.
Remember, all LegalASAP dental malpractice attorneys work on contingency. This means you pay nothing out of pocket for a free, no-obligation claim review. And if your case does win a cash settlement, you’ll still only pay a small, one-time fee.
Ready to see if you may qualify? Complete your free online medical malpractice case evaluation now!
Lisa Allen is a writer and editor who lives in suburban Kansas City. She holds MFAs in Creative Nonfiction and Poetry, both from the Solstice Low-Residency Program in Creative Writing at Pine Manor College. Prior to becoming a writer, Lisa worked as a paralegal, where she specialized in real estate in and around Chicago.