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I want to sue my dentist Medical Malpractice

Discussion in 'Professional, Medical Malpractice' started by rabakh, Oct 9, 2020.

  1. Tax Counsel

    Tax Counsel Well-Known Member

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    I disagree. We don't have the medical records and the opinion of a dental expert to know if any malpractice occurred. All that can be said at this point is that nothing in what the OP posted clearly indicates negligence.

    Those are certainly factors that would tend to diminish the negligence claim, certainly, but those things do not mean that the work the dentist did do wasn't negligent.

    The only good way to know if negligence occurred is for the OP to consult medical malpractice attorney and have the records reviewed by an expert. An attorney will only do that, however, if he/she sees enough potential damages from a negligence claim to make the litigation worth the time and expense that it would take. The trouble I have with the OP's claim is that it appears that the damages might not be sufficiently high to make the litigation worthwhile. That's something for the OP to discuss with the attorney.
     
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  2. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    By the way you're describing the situation, it seems that the attorney is willing to take your case to review your medical records and send the dentist a letter and hope it prompts a settlement. Getting to the heart of your question, people and insurance companies don't typically just pay $250,000 after receiving a strongly worded letter from an attorney. That's what everyone does. If someone made such a demand from you, would you simply hand over the money ?

    Does your attorney know about your misrepresentation of your medical history to the dental provider? Consider that this will likely be an issue that you may not be able to hide either. The lawyer loses little by sending a letter and hoping. After that, how it plays out is anyone's guess. I'm with the others and nowhere near as confident as you are of receiving anything substantial.
     
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  3. zddoodah

    zddoodah Well-Known Member

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    How should we know?

    All you've told us is that you had pain following a medical procedure and that you lied on your medical history form. Despite having been asked multiple times, you haven't said what you think the dentist did that was negligent.

    If some lawyer is willing to take your case, THAT is the person whom you should be asking about the likely possible recovery.

    That's up to you and your attorney.

    Yes.

    No one.
     
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  4. rabakh

    rabakh Law Topic Starter New Member

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    Hello,

    Here are some of my replies. The attorney has not received the records from the Dentist as yet, which has the forms I signed upon checking in at the Dentist, my x rays etc. He has seen my medical records from the hospital.

    1) I have never sued anyone before. I want the Dentist to pay for my medical bills since I went to the ER twice in one week and then was in a hospital for few days where they removed an oral abscess, as well as my pain and suffering, loss of enjoyment, and lost wages - I lost my job as I could not attend it due to pain. I work in a shop floor

    2) I was told that when the jury sees the pictures of my swollen face and my hospital bills they will feel sympathy and award me the maximum amounts. I am not rich and the insurance company and Dentist is rich. The jury knows that.

    3) The negligence was the abscess and pain that occurred after I had my tooth extracted

    4) I did sign a Informed Consent for Oral Surgery and Anesthesia, on the form it says that there are inherent and potential risks which include - postoperative discomfort and swelling, postoperative infection, injury to the nerve, etc.

    I do not know if this holds any validity in the real world

    5) The administrator Michael Wechsler said it right - "By the way you're describing the situation, it seems that the attorney is willing to take your case to review your medical records and send the dentist a letter and hope it prompts a settlement."

    The attorney I met showed me a draft letter requesting records under the law etc. and asked for a settlement or else he will file a lawsuit

    I do not know if he heard or remembers about my misrepresentation of my medical history and cigarette, I can ask him if I see him again. Why is that an issue in this case?

    What happens next, if I hire the attorney and he writes the demand letter? The Dentist will send the records and then the insurance company will make an offer?

    Or can the insurance company refuse to make a settlement because they see no fault? Will the insurance company have any dentists they can consult for an opinion?

    Thank you
     
  5. Zigner

    Zigner Well-Known Member

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    You should have visited the dentist to get the antibiotic, as instructed.

    That's not how it works.

    That is not negligence, that is a known risk that you accepted. Furthermore, had you followed the instructions the dentist gave you, this likely wouldn't have happened.

    That form IS the "real world". I think it is you who are not in the "real world".

    I don't believe the insurance company is just going to roll over on this one. Frankly, it sounds like you brought this on yourself. But, hey, you are free to hire the attorney if you wish. Attorney's gotta eat too.
     
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  6. zddoodah

    zddoodah Well-Known Member

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    You will likely never see a jury. 85-90% of civil cases never go to trial. If your case is so good that pictures of a swollen face will sway a jury, then you'll get a settlement before trial. ALSO, the fact that your face swelled up doesn't mean the dentist did anything wrong. Unless you can prove the dentist did something wrong, you won't survive summary judgment (and pre-trial motion). Last, the jury will never hear about insurance or anyone's level of wealth or lack thereof, and not all dentists are "rich." I'd be VERY wary of any lawyer who tells you stuff like this.

    You're not even close to having an understanding of what negligence means. "Tax_Counsel's" response on the first page of this thread explains it very well. Read it.

    It does.

    Lying to a medical professional is bad. Why did you do it? It's POSSIBLE that, had you not lied, the dentist would have done things differently, and the outcome could have been different.

    Yes, the insurer can decline to make an offer. Yes, you'll get your records. Yes, the insurer will be able to consult with experts if it is so inclined.
     
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  7. Tax Counsel

    Tax Counsel Well-Known Member

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    You have to prove that the dentist committed malpractice, not just that you had a bad experience from the procedure. If your failure fully disclose your relevant medical history or to do the follow-up appointments that the dentist wanted you to do contributed to how bad your situation became, that will work against you.

    The jury won't know much about how wealthy you or the dentist is because evidence about that is not admissible in the trial.

    And juries don't automatically award the maximum just off a picture of your face. They'll also hear about how quickly you healed, that the pain, etc., did not last all that long, that there was no permanent disability/disfigurement from this. With most juries that will temper the award they give, and even should they give the max, the judge may knock the amount down as being excessive.

    While I don't want to make light of what you went through, your outcome is nowhere near the worst medical events that people have gone through where, for example, multiple surgeries and long, painful rehab lasting months or years are needed to recover, or worse, those injuries that cause serious, permanent damage that may leave someone comatose or bed ridden the rest of their lives. Those are the cases that you'll see max pain and suffering awards and very large actual damage awards.


    No. This is critical for you to understand. Negligence is not determined by outcome. Negligence is determined by whether the dentist followed the minimal standard of care dentists are expected to provide in this kind of procedure. Even when the dentist does things correctly it is possible for a bad outcome to occur. Thus, you cannot say that the abscess and pain is evidence of negligence. It's not. Rather, that would go towards possible damage if there was negligence. To establish negligence a medical professional will need to review the records and other evidence of what the dentist did and compare that to the accepted standard of care that dentists are expected to provide for that procedure and give an opinion as to whether what the dentist did during that procedure fell below that standard of care. Again, it may be that the dentist did what he was supposed to do and you were just one of the unlucky ones that had a worse than typical outcome from it.

    Right. And that consent means you were informed and thus presumably knew that sometimes things like infection, etc, do occur in that kind procedure even when the dentist follows the generally accepted standard. And the dentist will point out whatever the studies are that show this kind of thing sometimes occurs and that you were warned of it in his defense.

    It matters if that information would have changed how the dentist went about the procedure. Also, it may allow the defense to paint you as someone who is untruthful — willing to hide potentially unflattering facts about yourself to others. The defense would then suggest to the jury that you may not have been completely truthful in your testimony in the trial to try to get the jury to discount it. In short, the dentist's lawyer can use it to paint you as a liar.

    The dentist will likely send the records if you made a proper request for it. The attorney then should have a dental expert review the records to determine if there is any indication of malpractice. If the answer is no then the lawyer won't want to take the case any further.

    And if there is no indication of malpractice, the insurance company won't offer a dime. Bear in mind that the insurer may only offer the settlement if the dentist agrees to it, and most medical professionals will not sign off on a settlement when there no indication of malpractice as that can impact their license. Certainly they'd not agree to that so soon unless the amount is so low that it's just an offer to make you go away to avoid paying out even more in legal fees for the defense.


    Of course the insurance company may do that, and as explained above the insurance company likely will do that if it sees no negligence.

    Absolutely. The insurance company and the lawyers it retains will have a ready list of experts they can use to review the records and determine if they see any malpractice.
     
    Last edited: Oct 12, 2020
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  8. Tax Counsel

    Tax Counsel Well-Known Member

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    I agree and want to emphasize this point. Any lawyer who shines you on like that is to be avoided. Such a lawyer is not giving you an accurate view of the case and may not even really understand what it takes to litigate this kind of case. You don't want the kind of lawyer that signs up as many clients as possible and simply goes for the fastest settlement possible from those cases where offers are made at all. Those lawyers make their money just on the volume of cases they churn through the office, short changing those clients they have that actually do have a good case.
     
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  9. rabakh

    rabakh Law Topic Starter New Member

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    Thank you all. I did not 'lie' on my medical form, I just put no for all conditions and said I do not use tobacco (I am a daily smoker and my hospital medical records state I am a daily smoker).

    I was in a rush at the Dentist and in pain so I just signed everything quickly including just putting No for all medical conditions.

    Can I also sue the first ER I went to? Because they did not cure me, and I had to go back to the ER after a few days.

    I would love to read some introductory books on how this whole malpractice world works, written for a high school student. I am going to read a justice 101 website.

    Thank you
     
  10. justblue

    justblue Well-Known Member

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    @rabakh Were you smoking after the tooth pull?
     
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  11. justblue

    justblue Well-Known Member

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    If the correct answer to a question is "yes" and you put "no" ....that is lying. Were you smoking just after/within 24 hours of the extraction?
     
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  12. Tax Counsel

    Tax Counsel Well-Known Member

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    The form asked if you were a smoker, right? And to that question, you answered no when, in fact, you smoke daily. Most people would characterize that answer as a lie — you knew what you were stating was untrue.

    You can make that argument to the jury if it goes to trial and hope that it helps. But the dentist will point out they ask those medical background questions for a reason — that information affects the type of care that you need. How is the dentist to provide you proper care when you won't even provide good information about your medical history? That's important information and should not be checked off in a rush.

    You still have not got it after I've explained it at least twice. So focus on this: OUTCOME DOES NOT EQUAL NEGLIGENCE. PERIOD.

    There are lots of times that a trip to the ER does not completely cure you. The job of the ER is not necessarily to cure you. That may take additional follow-up care. The ER's job is to provide emergency care to stabilize you and ensure you are not facing a life threatening or severe condition. Once they stabilize you they'll discharge you and give you instructions on the follow-up care you need. And again, even if the ER does everything right sometimes you have to go back because not everything always goes as you hope.

    Malpractice means that the medical professional's care in your case fell below the minimal accepted standard of care in that profession for that situation. The only way you will know if there was malpractice here is to have a medical expert review what the dentist and ER did and have that expert then opine whether what they did fell below the standard of care and, if so, whether that substandard care was the reason for the outcome you had. If the outcome would have occurred even if everything was done right you don't have a good malpractice claim.

    One more time for clarity: outcome does not equal negligence.
     
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  13. Zigner

    Zigner Well-Known Member

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    Do you understand what a "lie" is?

    You had enough time to fill the form out (and remember the specific question [I don't even recall seeing that on a dental intake form that I recently filled out...but it probably was there]), so you obviously chose to give a false answer.

    The ER probably told you to follow up with your primary care physician. Did you do that, or did you also ignore that, as you did when the dentist told you to come back in?
     
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  14. rabakh

    rabakh Law Topic Starter New Member

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    Yes of course I smoked (cigarettes) on the day of the procedure, I do not remember if I did right after the procedure. I did a few days after the Dentist visit.

    I did not go to the Dentist (I was already in the hospital by then, and when the dentist asked me to return for an evaluation and antibiotics on the day of the procedure, I was busy) for a follow up or to the primary care physician, I thought the ER medicines will cure me. I was busy with my life and in pain.

    Thank you now it is clear that outcome does not include malpractice, this is a very important point. I thought that if the outcome is bad then the provider is at fault. Thank you thank you.

    My other concern is that will the defendant insurance company or attorney or the jury be able to ask for my complete medical records related to the ER and hospital?

    As I am claiming lost wages, can the defendant team, or jury request my employment records to verify my employment dates?

    Or is that all confidential information only for me and my employer and doctor?

    Is the payout I may receive lets say 100,000 dollars taxable?

    I also read about subrogation, if I get a settlement or payment by the court can my health insurance company claim any of it?

    Thank you for being patient and helpful
     
  15. justblue

    justblue Well-Known Member

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    Based on all; the postings OP has placed on this thread, it seems as if s/he is trolling.
     
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  16. rabakh

    rabakh Law Topic Starter New Member

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    No!! I am just trying to get some help and guidance. I value and appreciate all the replies.

    I am not causing any problems. I just want to know the reality of the options available to me.
     
  17. Zigner

    Zigner Well-Known Member

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    IF it got to that point, yes, those records will need to be made available to the other side.


    IF it got to that point, yes, those records will need to be made available to the other side.

    No. IF it got to that point, those records will need to be made available to the other side.

    I don't believe you're going to get anything, but I'll let others address the taxability of any "payout" you may receive.

    Yes - they'll seek whatever they paid out.
     
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  18. Tax Counsel

    Tax Counsel Well-Known Member

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    Ok, good. That's a start that will help you to better understand how this all works. It isn't exactly easy for a nonlawyer to understand it all right off the bat. Some of it is complex.

    That's another thing some plaintiffs find surprising. The defendant is entitled to ask for — and get — ALL your medical records and history. They can do that because your prior medical history may have an impact on how things turned out in this event.

    Of course the defendant will ask for the employment records to verify the days you worked to check your claim that you had to be out of work those days because of the medical problems you had.

    What you will find is that when you sue a doctor for malpractice pretty much nothing of your medical history, employment history, etc is confidential. They'll get to see it all because by suing them and seeking compensation for the claimed damages you put all that at issue in the case. You claim medical malpractice and that puts at issue everything that might have affected your medical outcome, i.e. all your medical history. You claim lost wages and that puts your employment history and work dates at issue. The other side is entitled to get information about the stuff you claim. Just as you are able to get from the doctor all the relevant history of the procedure, what other similar procedures he's done, what other malpractice claims have been made against him, etc. It's a two way street. You both will be getting lots of information in discovery.

    None of the compensatory damages in a personal injury claim are taxable income for federal income tax purposes. Most states follow that same rule. However, any punitive damages or interest would be taxable income.

    Yes. Your insurance company can claim what it paid out for your care that resulted from the malpractice. In addition, any health providers you owe will make a claim on that award too. Your lawyer pays out all that prior to giving you your share of the award. That's fair because those medical costs are part of what the award was compensating you for. The jury awards it assuming you had to pay those bills.
     
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  19. cbg

    cbg Super Moderator

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    And what is that if not a lie?
    Of course they will. Do you think they have to take your word for it?
    Same answer.
     
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  20. zddoodah

    zddoodah Well-Known Member

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    Ummm...being "a daily smoker" and then stating on an intake form that you "do not use tobacco" most certainly is a lie. What do you think it is if not a lie? If I were defending the doctor and managed to find your statement here, I would be thrilled because it would allow me to argue to the jury that you don't understand the difference between truthfulness and lying.

    You're clearly not reading and/or understanding the responses you've received thus far. Putting aside the fact that anyone can sue anyone for anything, the outcome, by itself, does not make for a viable case. In order to recover against a medical provider, you have to prove negligence. That the ER "did not cure" you and you "had to go back," by themselves, are largely meaningless facts.

    They can ask for anything. If the matter goes to litigation, they're entitled to anything that might be admissible or which might lead to the discovery of admissible evidence.

    Absolutely.

    The overly simplistic answer to this question is that any compensation you receive for lost wages may be taxable (although I see that this contradicts what "Tax_Counsel" wrote, so hopefully he'll clarify and correct this).

    Yes.
     
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