Celebrating 10 years! 2007-2017

Med Mal - How to Determine How Much $$$$$$ to ask for?

Ladies and Gents, I have a new client that had a dental thorohhh01/05/17
I do quite a bit of insurance defense, including some med ma jj1001/21/17
You need to hire experts. If you don't know where to start, trollfeeder01/05/17
That's the plan, friend. Unfortunately, these big shot exper thorohhh01/06/17
Medically, some of this seem surrealistic. "dentist dropped inho2solo01/05/17
By "surreal" do you mean unreal? We are not talking about th thorohhh01/06/17
I asking for advice on pain and suffering damages primarily. thorohhh01/06/17
"We are not talking about the sinus canal above or around th inho2solo01/06/17
The dentist drilled-out too much jaw bone? Who says? I k jeffm01/05/17
You missed my PERHAPS "Two oral surgeons have now said that thorohhh01/06/17
Thanks. I did not suggest you left bad details out that you jeffm01/06/17
I've acted as appellate counsel on medmal cases, including d notiers01/05/17
" Many dental Mal attorneys on both sides are actually train thorohhh01/06/17
Dental malpractice is an extremely specialized area, even mo flharfh01/06/17
"Dental malpractice is an extremely specialized area, even m thorohhh01/06/17
I appreciate everyone who has put in there two cents. At the thorohhh01/06/17
The answer is obtainable from an expert. You pay them, you f trollfeeder01/06/17
I was always taught to ballpark the total damage claim by mu flharfh01/06/17
Like one of the above posters said, consider bone grafting s millersdaughter01/06/17
You're right. Nobody threw a number for P & S. Here's wh jeffm01/06/17
What is the cost of a...hairy tooth? One million per count, lolwutjobs01/06/17
I'm into GL exclusively (refer MM/DM). I would put the P&S a orgdonor01/07/17
Update: My medical expert finally came back from his mont thorohhh01/20/17
I 2nd-chaired a medical privileges "trial" once. It involve jeffm01/21/17
Maybe while you're waiting you can brush up on your spelling audaxmajor01/20/17
hahahaha! Nah, man. The point of writing is to communicate. thorohhh01/20/17
Here in Alabama, "Plaintiff requests damages in an amount to africaorbroke01/31/17

thorohhh (Jan 5, 2017 - 8:58 pm)

Ladies and Gents,

I have a new client that had a dental implant procedure go awry. Can anyone provide any tips (I refuse to call them "hacks" for many reasons) on calculating the damages that we can't put a receipt to?

It's a bit tricky because, while his pain has been significant, it's not so extreme that I am inclined to start super high and let the insurance company talk us down a bit. Here are few details to consider:

* In the initial procedure, dentist dropped the screw part of a dental implant (i.e. fake tooth) into the hole in client's jaw where the screw was supposed to be placed.

* The screw got stuck in client's nasal canal for three days.

* Another oral surgeon had to administer general anasthesisia and cut the screw out of client's sinus cavity. The first procedure was only local anathesia.

* Two oral surgeons have now said that client is not a candidate for that same implant procedure perhaps because the first dentist drilled away too much jaw bone when he extracted the real tooth (prior to but in the same procedure as dropping the screw).

* Client still doesn't have the fake tooth after the two procedures, but he may be a candidate for a brdge or another more invasive kind of fake tooth procedure.

* Client has suffered bloody noses, blood from initial suture cite, headaches, facial swelling, pain in face (obviously), and some disruption in sleep. These have lasted for three weeks now to various degrees.

* It looks like at least one of the stitches that the originial dentist's did was inadequate as that area still bleeds even though the dentist said it should be fine in a couple of days.

* All of this occurred during the recent holidays preventing my client from full participation in the season's activities especially eating and talking.

Any and all thoughts are appreciated,

T.

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jj10 (Jan 21, 2017 - 9:34 am)

I do quite a bit of insurance defense, including some med mal. I imagine your jurisdiction has a quantum book that discusses general damage awards for various body parts. I'd get some awards for similar accidents/injuries and increase it by some factor you believe appropriate. If your client has legitimate long term symptoms and dental problems, general damages could be significant. I suspect there is not much economic loss involved in a dental mal case but you never know. You will also need to get an expert to provide an opinion about future medical expenses. I'd line up experts early.

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trollfeeder (Jan 5, 2017 - 10:04 pm)

You need to hire experts. If you don't know where to start, it isn't a bad idea to refer the case out to a trial attorney and taking your cut.

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thorohhh (Jan 6, 2017 - 7:13 am)

That's the plan, friend. Unfortunately, these big shot experts take a month off from their work for the holidays.

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inho2solo (Jan 5, 2017 - 10:17 pm)

Medically, some of this seem surrealistic. "dentist dropped the screw part of a dental implant .... into the hole in client's jaw [but instead it] ... got stuck in client's nasal canal for three days.".

Was the dentist drunk at the time?



"client is not a candidate for that same implant procedure perhaps because the first dentist drilled away too much jaw bone when he extracted the real tooth"

With trollfeeder's comments in mind, and he's probably right so I hate to egg you on, still, get valid estimates for bone grafting and estimates for pain/etc related to this. I say this not as a lawyer but as a recent dental patient who needs significant graft work prior to being able to place the mount posts ("screws") for at least two sites.

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thorohhh (Jan 6, 2017 - 7:21 am)

By "surreal" do you mean unreal? We are not talking about the sinus canal above or around the nose.

There are sinus canal above our upper jaws. These are the oral surgeons's words and description, not mine. So, yes, what happened was the following:
1. Dentist extracted bad tooth.
2. Dentist drilled where bad tooth was.
3. When trying to screw the screw into client's jaw, dentrist dropped the screw into the hole where the bad tooth was and where he was drilling.
4. Screw went so far in that the dentist couldn't grab it. Dentist sent immediately sent client to an oral surgeon for removal. It was lodged above client's upper lip.

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thorohhh (Jan 6, 2017 - 7:24 am)

I asking for advice on pain and suffering damages primarily. That is why I used the phrase "on calculating the damages that we can't put a receipt to." Of course, I will obtain (and don't need any advice on getting) estimates on what other procedures are still possible.

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inho2solo (Jan 6, 2017 - 3:40 pm)

"We are not talking about the sinus canal above or around the nose"

Then perhaps "stuck in client's nasal canal" was an unfortunate choice of words on your part.


"asking for advice on pain and suffering damages primarily ...don't need any advice on getting) estimates on what other procedures are still possible."


Sure. That's why I mentioned "valid estimates for bone grafting AND estimates for pain/etc related to this".

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jeffm (Jan 5, 2017 - 10:36 pm)

The dentist drilled-out too much jaw bone? Who says?

I know nothing of your case except what you divulged. However, I can see another side as a strong possibility. Your client never kept up his teeth. Has a bad cocaine issue. His mouth is rotting away. He needs surgery. He waited so damn long! Why? This guy's a difficult patient because he's in bad condition, etc.

Check into your own side carefully if you have not already. You best have a well-qualified expert in the same practice line-up as your expert, with a signed affidavit ready to go. That's probably your least expensive way to find out the real deal and the only way you'll have a real case anyway.

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thorohhh (Jan 6, 2017 - 7:32 am)

You missed my PERHAPS "Two oral surgeons have now said that client is not a candidate for that same implant procedure PERHAPS because the first dentist drilled away too much jaw bone when he extracted the real tooth (prior to but in the same procedure as dropping the screw)." The other possibility is that the dentist misevaluated the client and in fact the client was never a good candidate for that procedure due to lack of bone. I am exploring both alternatives.

The rest of his teeth are fine. In fact, the dentist recommended the procedure attempted because his other teeth were so good and the client is relatively young.

You can trust me to include details that you whimsically imagine -- "Your client never kept up his teeth. Has a bad cocaine issue. His mouth is rotting away. He needs surgery. He waited so damn long! Why? This guy's a difficult patient because he's in bad condition" -- IF such details were true or even might be true.

By the way, JeffM, I enjoyed your ebook from this forum. Thanks for pointing the way to independence from firms.

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jeffm (Jan 6, 2017 - 8:48 am)

Thanks. I did not suggest you left bad details out that you knew. It was just to point out the possibility that you might not know enough, yet. I made up the worst to demonstrate a range of how it could be. The facts might be anywhere in between.

Anyway, if it's the real deal, good luck. If you can get a good expert to review all the dental charts for your client's history and to examine your client and give you a favorable opinion in writing showing the negligence of the dentist, you are in decent shape. Med-mal cases are hard and can be costly. I think pain and suffering damages are probably not all that high, assuming your guy's headaches and sleeplessness are of fairly short duration.

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notiers (Jan 5, 2017 - 11:11 pm)

I've acted as appellate counsel on medmal cases, including dental Mal. Many dental Mal attorneys on both sides are actually trained dentists. And the ones that aren't - probably could be by now. You're in a real specialty area. You are better off referring this case to a real plaintiff side medmal attorney and getting your cut. Trying to handle this case on your own is going to be expensive and there is a real chance you're going to mess it up. And ya see what JeffM just did there. The defense will do that times three. Take my advice. Don't try to work this case, put it in the right hands and earn your cut. And if you want to learn - ask the Atty that is handling it if you can tag along for deps, IMEs and trial.

Finally, you should know that insurers for doctors are very slow to settle and will often try cases. This won't be like negotiating a GL case.

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thorohhh (Jan 6, 2017 - 7:41 am)

" Many dental Mal attorneys on both sides are actually trained dentists. "

Cuz being just a dentist must be sooooo boring. hahahaha

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flharfh (Jan 6, 2017 - 12:16 am)

Dental malpractice is an extremely specialized area, even moreso than medical malpractice, just because so few dental malpractice cases have damages sufficient to litigate. Loss of a single tooth is typically not a high damages proposition. I know of precisely one Plaintiff's lawyer in my state who does these cases.

It also sounds like your client is not to the place yet where you can really gauge his damage claim.

Finally, keep in mind that when a malpractice insurer makes a payment on behalf of a doctor or dentist, they are supposed to report it to the national practitioner malpractice databank. This creates a big disincentive to settle cases unless liability is clear or there is a huge damage claim.

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thorohhh (Jan 6, 2017 - 7:39 am)

"Dental malpractice is an extremely specialized area, even moreso than medical malpractice, just because so few dental malpractice cases have damages sufficient to litigate. Loss of a single tooth is typically not a high damages proposition."

This why I am exactly the best person to handle this case despite the haters (hahahaha). I have zero overhead aside from keeping myself alive. So, even if he settles for small (yet reasonable) money, client and I will be fine with that.

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thorohhh (Jan 6, 2017 - 7:48 am)

I appreciate everyone who has put in there two cents. At the same time, no one has exactly joined issue with my limited question.

To phrase that question differently: How do I begin to assess the pain and suffering damages for this case? Even if we would revise that number as the the case progresses, how do we assess the pain and suffering damages for what has happened so far? If you had to put a number to what has happened so far, what would that number be?

If you think such an estimate is impossible or unhelpful or whatever, why?

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trollfeeder (Jan 6, 2017 - 9:19 am)

The answer is obtainable from an expert. You pay them, you find out. That is also your overhead. I don't think you understand the good advice you are receiving.

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flharfh (Jan 6, 2017 - 12:59 pm)

I was always taught to ballpark the total damage claim by multiplying the special damages by 2-3x. Obviously this is just a very rough rule of thumb. I don't think you can accurately estimate it yet since your client is still actively treating.

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millersdaughter (Jan 6, 2017 - 8:14 am)

Like one of the above posters said, consider bone grafting surgery in addition. I had this done properly and it was two surgeries even without the oral surgeon screwing up. Could be more than two if there is correcting to do. That said, I think the unwritten down amount billed on both surgeries I had total was under 10k.

But implants last maybe 10-15 years, depending on the tooth. Molars wear out faster than front teeth, but front teeth are obviously more important cosmetically cause no one wants a screwed up smile. Having to fix your smile every so often for decades adds some value to the case both numbers-wise and pain and suffering. Agree with everyone above that if it is worth any money bring someone on board who knows what they are doing. Getting the experts to say the exact right thing are everything in these cases and an experienced med mal attorney will know if an expert is equivocating or giving you a good opinion.

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jeffm (Jan 6, 2017 - 9:10 am)

You're right. Nobody threw a number for P & S.

Here's what you revealed: "Client has suffered bloody noses, blood from initial suture cite, headaches, facial swelling, pain in face (obviously), and some disruption in sleep. These have lasted for three weeks now to various degrees."

It sounds like it is on-going, but assuming 3 weeks of this, just throw a number at it. Maybe it adds another $3k to the pot. Bump your demand $10k.

Then, there's a component of P & S about having to endure more procedures. Add another $3k/$10k for each additional procedure he has to endure.

Then, there's the component about having to go to the greater lengths of "a more invasive procedure." I'm no dentist, but consider this: Plan A -> Plan B. If you do Plan A correctly, you can reserve Plan B as a back-up for a later date, if needed. If you have to go to Plan B, that's the end of it. There is no Plan C, or you don't ever want to have to go through Plan C. You are taking possibilities off the table. That has value. That could be another chunk to chase. It might fit into the anguish and/or disfigurement categories.

Somebody else might have a different view. I claim no science behind mine.

Be very careful if you are using this as a "not so big" case to cut your teeth into med-mal and make a fee. Aside from the cost of your expert, there are two other things to consider:

1. You will aggrandize the value of the case when you make your demand. "We believe my client's damages are $350,000."

2. There are special pitfalls in med-mal procedure which are basically designed to chunk those cases out of the courts, thanks to tort reform. You can easily get wiped on a summary judgment for any kind of mistake - such as not wording your expert's affidavit quite correctly in the court's opinion.

These cases are risky because you can make a small mistake on a small case that you puffed-up to look bigger than it is, and then, as a defendant in your own legal mal case, you have to explain about all the puffery you engaged in when trying to settle the underlying case. "Sir, you wrote this demand, claiming Mr. X's damages were $300,000. And now, you are telling the jury his damages really weren't $300,000?"

I'm not saying don't take this case. I am saying be very cautious, and if you can get someone experienced to look over you, that's even better. We all have to learn if we are going to do these things, so I encourage learning. Just be very careful in this arena.

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lolwutjobs (Jan 6, 2017 - 3:52 pm)

What is the cost of a...hairy tooth? One million per count, I'd say.

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orgdonor (Jan 7, 2017 - 10:51 pm)

I'm into GL exclusively (refer MM/DM). I would put the P&S at $100k-$150k plus meds. Just guessing here. People are afraid of the dentist. The "drilled the hole too big" angle sounds like it's worth some cash.

But I guess because I see value, I would suggest referring it and taking a fee on the referral. You settle it for $60k after a year you get $20kish. You refer it to someone who settles it for $150k plus meds you get some part of $50k+ - but do zero work.

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thorohhh (Jan 20, 2017 - 11:39 am)

Update:

My medical expert finally came back from his month-long vacay in Florida. Although my client still needs to be examined by this expert, the expert said over the phone that the "dropping the screw" issue happens to a dentist/oral surgeon roughly once in every five years. In context, his statement subtely implied that there had to be additional exacerbating facts for the screw-drop to constitute malpractice. I'm not convinced that's legally correct. Regardless, my client has a few of the excerbating facts.

The best one is one I newly discovered after doing a little research (read "google some shet for 15 min"). Oftentimes, prior to a dental implant, dentists will do a bone graft and often that is in a separate procedure. Since subsequent dentists told my client that he did not have enough bone to NOW GET a BONE GRAFT, I stated to him that the offending dentist should have probably done a bone graft. To my surprise, my client said that the dentist was supposed to do one, but didn't. What did the dentist think,"I'm just gonna wing it"?!?! My client even had to delay the initial procedure multiple days so that he could get the bone graft, the same scheduled bone graft that neither performed nor even attempted.

I can't wait to see these medical records.

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jeffm (Jan 21, 2017 - 11:00 am)

I 2nd-chaired a medical privileges "trial" once. It involved a peripheral vascular interventionalist. These guys inflate and ream your arteries, but they don't do by-passes.

If that privileges hearing is any sign of how doctors think...

In writing and orally, they speak matter-of-factly about "expected complications." They are not accustomed to use "neglect" and "negligence." My guess is it's use is shunned by some socially-proper standard among the profession that you don't go around spouting the word, "negligence," about somebody else's work unless you are damn sure and don't mind possibly being viewed by many peers as a turd.

In the ordinary world, we expect negligence to happen all the time. Car wrecks, dropping a bag of groceries, etc. These doctors would call all of that "expected complications."

If you can't get a better expert who is comfortable using the word, "negligence," this alone could make it very tough. These guys don't survive cross very well. See if your expert can come out and assertively claim negligence. You'll just have to ask him straight-up if you already haven't. He must be able to say Doc's service fell below the reasonably expected standard of care for other docs who perform the same or similar services (paraphrasing). If he says, "No, it happens to good docs even on their good days," he'd make a good defense witness.

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audaxmajor (Jan 20, 2017 - 12:27 pm)

Maybe while you're waiting you can brush up on your spelling. I'd suggest you start with "subtly."

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thorohhh (Jan 20, 2017 - 1:17 pm)

hahahaha! Nah, man. The point of writing is to communicate. If you can't figure it out, know mattar 2 meeeeee

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africaorbroke (Jan 31, 2017 - 10:11 pm)

Here in Alabama, "Plaintiff requests damages in an amount to be determined by the tryer of fact."

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