Laws vary from state to state, but the elements of a liability claim for dental malpractice or negligence by a dentist are generally:
• a dentist is a defendant;
• the claim or claims at issue concern treatment, lack of treatment, or a departure from accepted standards of dental care;
• the defendant owed the plaintiff a duty of care;
• the defendant breached its duty of care by not meeting the required standard of care; and
• the defendant’s act or omission proximately caused the plaintiff’s injury (was the primary cause of the injury).
A claim for dental malpractice or negligence by a dentist may be brought as a simple negligence action based on the elements of a negligence claim—which are often located in a state’s court opinions (also known as case law or common law).
And in some states a claim for dental malpractice or negligence by a dentist may be defined by the state legislature in the state’s statutes—whether broadly as a health care liability claim against a health care provider, or more specifically as a claim for dental malpractice against a dentist.
In Texas, dental malpractice falls under the broader category of medical malpractice. To establish a dental malpractice claim, the plaintiff must prove that the dentist owed a duty of care, breached that duty by failing to adhere to the accepted standard of dental care, and that this breach was the proximate cause of the plaintiff's injury. Texas law requires that the standard of care be established by expert testimony from a dentist who is practicing or has knowledge of the accepted standards of dental care for the diagnosis, treatment, or failure to treat the condition in question. Additionally, Texas has specific procedural requirements for medical malpractice claims, including a requirement to provide a written notice of the claim to the defendant at least 60 days before filing the lawsuit and a requirement to serve an expert report on the defendants within 120 days of filing the lawsuit. Failure to comply with these procedural requirements can result in the dismissal of the claim. These regulations are codified in the Texas Civil Practice and Remedies Code, and case law further refines the application of these statutes.
