Legal Question in Medical Malpractice in California
do i have a case?
root canal performed Dec '10 -- lower right molar #30 -- 3-4 roots in tooth, not 2 -- broke instrument (RC file) half way down 1 root -- was informed by dentist and he recommended finishing, leaving instrument behind -- i had continuous, slight pain, some difficulty chewing for 2-3 mths -- went back in, x-rayed, was told it was bite problem -- ground a little off crown -- problem continued -- at 5 mths, significant pain, swelling, couldn't chew on right side of mouth -- went in again, was told it could be instrument or fracture, but couldn't tell from x-ray if it was a fracture -- was also told by my dentist i would be referred to an endo for eval -- called my dentist back for referral, but dentist's partner intervened and said tooth was fractured and needed to be extracted -- my dentist offered to apply cost of root canal and crown ($1300) to the cost of extraction, implant, and another crown ($4800), leaving me with a bill of $3500 for their mistake -- i forced the issue and got a referral to a root canal specialist -- result was specialist said no evidence of fracture, there was probably a 4th root that my dentist didn't even see, and the broken instrument was causing infection (abscessed furcation) -- tooth is not salvageable and specialist recommends extraction, implant, and crown -- specialist wrote letter stating this which is in my possession -- also have in my possession a copy of x-ray clearly showing instrument in root -- currently on antibiotics -- gums are swollen -- can't chew on right side at all -- constant pain -- loss of sleep -- effecting daily performance -- etc, etc, etc.
not sure if this meets negligence criteria -- if they had done a competent root canal, i wouldn't have any problems, or incur any more expenses -- going on 7 mths now and probably will continue to get worse -- antibiotics have only been minimal help
insurance (HMO) precludes me from seeing another dentist without losing the offer on the table from my current dentist -- based on their previous performance, i don't really want these guys doing anything to my tooth -- ideally, i believe my dentist should pay the entire cost for another qualified endodontist to extract tooth, put in implant, and crown and/or whatever else you think might be applicable
it's not that he broke an instrument, but it looks like he missed the 4th root entirely and he had 3 opportunities to make it right -- 1) when it happened, 2) when i went in the first time with pain and he said it was a bite problem, and 3) when i went in the latest time and finally got a referral to somebody who actually knows what they're doing.
please advise -- will answer any questions
thank you
2 Answers from Attorneys
You facts sound terrible, but when claiming medical malpractice, your claim must be supported by the opinion of a doctor who is a 'qualified expert' in that field of medicine, who is prepared to testify in court that there was medical malpractice, meaning the treatment fell below the acceptable standard of care, and that such negligence caused legally recognized damage or death. Neither your opinion about malpractice, nor mine, is relevant nor 'proof' of malpractice. You are not supposed to file suit without having that expert opinion available. Consult with your other treating doctor[s] to see if they are willing to provide that opinion and testimony, or you can contact independent experts for that purpose if your treating doctors say there is negligence but they won't testify. I can provide referrals and assistance if necessary. If you obtain such an expert's testimony, and if you determine that you have a case with MERIT [provable malpractice and a likelihood of winning], VALUE [substantial provable damages] and COLLECTABILITY [defendant with substantial assets or insurance], then you would have proper grounds to bring your legal claims in a lawsuit. Keep in mind that you have only one year maximum from 'notice' or learning of the suspected malpractice to bring suit.
You may have a claim. The real question is why the tooth cannot be saved. It is generally not considered malpractice to fracture a file during a root canal. Missing a 4th root is a grey area where you can get opinions on both sides, negligent or not negligent. Did the dentist perforate the root at the furcation with the endodontic file? You may not have an answer to that question and it might not be answered until the tooth is removed. Did the infection that was not treated result in the tooth not being salvageable? It was the dentist's duty to tell you that he broke the file and he complied with that duty. The main question as I indicated above is why the tooth at this time cannot be saved and if that is related to negligence. If you can email me the x ray and the letter for the endodontist I might be able to give you better answer. Even if there was malpractice, you do have a limited claim with the loss of one tooth. So, your claim has to be almost "slam dunk" to proceed.
Michael Wasserman
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