As everyone knows a trip to the dentist’s office doesn’t usually make people smile, at least not until they have successfully navigated the unpleasantness and discomfort and have made it out feeling at least as well as they did when they went in.  Although most patients are preoccupied with the visit itself, it is in the aftermath of a visit that the evidence of dental malpractice appears. Of course, not all pain which follows dental care is malpractice and is often quite common with a tooth extraction or root canal.

Dental malpractice occurs when the dentist, dental specialist or aide is negligent or departs from the accepted standard of care in the industry.  This can take many forms.  It can be as drastic as performing procedures that should not be performed, such as removing teeth or fillings that don’t need to be removed.  Or the malpractice can be as subtle as failing to formulate a proper treatment plan.

The most common types of dental malpractice include: shoddy workmanship, using poor quality materials, performing work outside of one’s area of expertise, improper or inaccurate administration of anesthetics and failure to properly diagnose the patient’s condition.

Common injuries caused by dental malpractice include nerve damage, infection and bone loss and loss of teeth.  Of course, remedial dental work can be extraordinarily expensive adding emotional stress to the equation.

Many personal injury attorneys as well as medical malpractice attorneys shy away from dental malpractice cases, believing that the potential return is not worth the cost and risk involved.  However, it has been my experience that where fault is clear, these cases will reach a just resolution.

How much is my personal injury or medical malpractice case worth?  This is the question that every plaintiff wants to have answered as early as possible and every sensible attorney wants to avoid for as long as possible. Although defendants like to believe that certain injuries have a certain value and may even use computers to justify their offers, a good plaintiff’s personal injury attorney knows that every person and case is unique. My thirty plus years of practicing in this field have led me to believe the following as inevitable truths regarding the value of a particular case:

1. A case, like a baby, has an uncertain future and takes time to develop.  It is impossible to accurately predict what he or she will be like at maturity.

2. Unfortunately, the greater and longer lasting the injury, the greater the potential value of the case.  I always advise my clients that it is much better that they have an excellent recovery from their injuries and collect very little money. The alternative being well compensated but suffering miserably. In other words, a plaintiff should hope that their case has no value.

3. A personal injury, dental or medical malpractice case actually has no inherent value.  At the end of the day, it is only worth what an insurance company is willing to settle for when their back is against the wall. Alternatively, a case is worth what a jury ultimately awards the plaintiff. However, even the latter value is less than certain, because an award can always be set aside by a judge or appellate court if they do not find the amount of the award to be proper.

4. When a case reaches maturity, a multitude of factors come into play in determining fair value. Like it or not, juries are made up of human beings whose decisions can be impacted by their own prejudices and perceptions, fair or not. Accordingly some of the important factors include, in no particular order;

*The like-ability of the plaintiff,

*The like-ability of the defendant,

*The relative certainty that a fact finder will determine that the defendant’s negligence was the primary cause of the plaintiff’s injuries,

*Whether or not the plaintiff had any prior similar injuries or conditions that could have caused or contributed to the injuries,

*The defendant’s insurance company and how they view certain claims,

*The adjuster handling the claim,

*The reputation of the plaintiff’s attorney and his or her ability, experience and determination,

*The motivations of the defendants attorney,

*What kind of witness the plaintiff makes, how they performed at their deposition and how well they are able to communicate their injuries, pain and limitations,

*The extent of the injuries, the degree and length of the plaintiff’s pain and suffering, and the impact that the injuries have had, and will have, on plaintiff’s normal daily routine and lifestyle,

*The quality of plaintiff’s experts and their ability to explain the medicine and/or other issues important to the case,

*The amount of past and anticipated future medical expenses to treat the injuries or conditions,

*Past and future loss of income or opportunity,

*Any number of other factors that may be applicable to the type of case involved.

5. It is not hard to understand, that after taking into account all of these considerations, it is difficult to put an exact value on a particular case. Rather, mature cases have a value that can only be expressed in a certain range. Depending on the relative severity of damages in a given case, this disparity in the low and high range can be as little as hundreds of dollars and as much as hundreds of thousands of dollars.

6. Ultimately, the value of a case comes down to a game of chicken.  Is the plaintiff willing to risk a firm and take his or her chances at trial?  Is the plaintiff’s attorney willing to risk expending substantial sums and a potential fee to give the client a chance to recover more than what has been offered? Finally, is the defendant’s insurance company willing to risk a verdict which could be substantially more than they are able to settle the case for before a trial.

So if you have a personal injury, dental malpractice or medical malpractice claim, don’t ask your attorney the dreaded question until the case has matured.  If you cannot control yourself and an attorney tells you the relative value of your claim before this time, chances are you can’t take it to the bank.

Can I handle my personal injury case myself?  Are you really asking me that question?  Congratulations!  At least you have taken the first step towards looking out for your own best interests.  Frequently, those who have sustained injuries in an accident or incident, or who have been injured or made ill by a careless doctor or dentist, don’t ask this question, or at least not right away.  These individuals are the ones who have absolutely no idea that by not even asking this question, they are almost guaranteeing themselves a bad result.

Although a degree, schooling, training or experience is no guarantee that justice will be achieved, involving an experienced personal injury lawyer or medical or dental malpractice attorney in your case will substantially increase the odds of a fair result, and/or a significant or substantial recovery.  I am always amazed at the number of people whose first reaction upon being injured is to try to negotiate with the insurance company themselves, only to come to me later bewildered by the fact that they have received only a minimal offer of settlement or no offer at all.  By this time many of those people have already said or written something which may result in limiting their recovery, even if they do ultimately retain an attorney.

These poor injured souls make me want to ask: What were you thinking?  Don’t you know that we offer free consultations?  You had nothing to lose by immediately contacting an attorney,  Don’t you know that unless you retain us, we do not and cannot collect a fee from you?  You can actually benefit from our knowledge and years of experience and THEN try to handle it yourself.  Don’t you know that even if you retain us to represent you, we do not get paid unless there is money collected either by way of a settlement or a judgement?  If we lose, we have worked for free.  That’s quite an incentive.

I don’t ever really ask these questions.  But I do try to explain the realities of personal injury litigation.  I explain that the insurance company has no desire to compensate them at all.  In over 30 years of practicing personal injury and medical malpractice law, I have only come across a handful of insurance adjusters who really had any empathy for my clients, no matter how severe the injuries were or how outrageous the wrongful conduct was.  The insurance companies answer to their shareholders, not to you who have been dutifully paying your premiums for years.  When you fail to get an attorney, they lick their chops knowing that they are now in control and can often get you to settle your case for a fraction of what it is worth.  They can get you to sign a release so that no matter how bad your injuries get in the future or how devastating an impact these injuries may have on your life, you will never be able to be justly compensated again.

The lesson that should be learned is that if you are ever injured as a result of a negligent or wrongful act of another person or entity, contact an attorney immediately.  It is never too early to seek their advice.  What you don’t know can and will hurt you.