What are my rights regarding a misdiagnosis?

UPDATED: Dec 11, 2013

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What are my rights regarding a misdiagnosis?

My dentist treated me for almost 4 months for what he diagnosed as oral thrush. When it did not get better I demanded a referral to an oral surgeon. He said I would be wasting my time and the oral surgeons time but I insisted and he gave me a referral. I went to the surgeon and he did a biopsy and the results were Stage lV cancer of the upper gums and hard palate. I had surgery a few weeks ago which included right side neck dissection, excision of 50% of upper gums and removal of most of my hard palate and teeth. Can I sue?

Asked on December 11, 2013 under Malpractice Law, Massachusetts


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Medical / dental malpractice is negligence.  Negligence is the failure to exercise due care (that degree of care that a reasonable medical / dental practitioner in the community would have exercised under the same or similar circumstances to prevent foreseeable harm).

Prior to filing a lawsuit for negligence against the dentist, it may be possible to settle the case with his malpractice insurance carrier.  Your claim filed with the malpractice insurance carrier should include the dental bills, dental reports (especially the report from the oral surgeon) and documentation of any wage loss).  If you have been released by the oral surgeon upon completion of yoiur treatment or have been declared by the oral surgeon to be permanent and stationary (which means having reached a point in your treatment where no further improvement is anticipated), obtain all of your medical / dental bills, dental reports and documentation of any wage loss for filing your claim with the dentist's malpractice insurance carrier.

Compensation for the medical / dental bills is straight reimbursement.  The dental reports will document the nature and extent of your condition and will be used to determine compensation for pain and suffering, which is an amount in addition to the dental / medical bills.  Compensation for wage loss is straight reimbursement.

If the case is settled with the dentist's malpractice insurance carrier, NO lawsuit is filed.  If you are dissatisfied with settlement offers from the dentist's malpractice insurance carrier, reject the settlement offers and file a lawsuit for negligence against the dentist.  If the case is NOT settled with the dentist's malpractice insurance carrier, your lawsuit for negligence against the dentist must be filed prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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