Can I sue a dentist even if I signed a waiver?

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Can I sue a dentist even if I signed a waiver?

The dentist forgot to give me a shot to numb me before pulling my tooth. I did get a shot but now I cannot open my mouth and I am in pain. It has been 6 weeks since the extraction.

Asked on August 31, 2012 under Malpractice Law, Oregon

Answers:

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

Answered 9 years ago | Contributor

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

Depending on its language and other factors, the waiver may or may not be valid.  A legal challenge could be mounted to the waiver if you have waived your rights to file a lawsuit in this malpractice case as such a waiver would be contrary to public policy.

Prior to filing a lawsuit, it would be advisable to have your dental records reviewed by another dentist, who could also examine you and write a report which could be used to support your malpractice claim.

Prior to filing a lawsuit for negligence against the first dentist, it may be possible to settle the case with the first dentist's malpractice insurance carrier.  Your claim filed with the first dentist's malpractice insurance carrier should include your dental bills, dental reports (including the report from the second dentist) and documentation of wage loss.  Compensation for the dental bills is straight reimbursement.  Compensation for wage loss is straight reimbursement.  The dental reports will document the nature and extent of your injury and will be used to determine compensation for pain and suffering, which is an amount in addition to the dental bills. 

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


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