📋 What is Dental Malpractice?
Dental malpractice occurs when a dentist or dental professional fails to meet the standard of care expected in the profession, resulting in injury to the patient. Under California law, dentists are held to the same MICRA (Medical Injury Compensation Reform Act) requirements as physicians, which significantly affects how claims are pursued and damages recovered.
Common Types of Dental Malpractice
This guide applies if you have experienced any of the following:
🦷 Nerve Damage
Injury to the inferior alveolar, lingual, or mental nerves during extractions, implants, or root canals causing numbness, pain, or loss of taste
🦠 Infections
Post-procedure infections from unsterile equipment, improper technique, or failure to prescribe antibiotics when indicated
🦷 Crown/Bridge Failures
Poorly fitted crowns, bridges, or dentures causing bite problems, TMJ issues, or damage to adjacent teeth
💉 Root Canal Errors
Incomplete treatment, instrument breakage, perforation, or missed canals leading to continued infection or tooth loss
⚠ Extraction Errors
Wrong tooth extraction, jaw fracture, sinus perforation, or retained root fragments
💊 Anesthesia Injuries
Allergic reactions, overdose, needle breakage, or prolonged numbness from improper anesthetic administration
Elements of a California Dental Malpractice Claim
To succeed in a dental malpractice claim under California law, you must prove all four elements:
- Duty of Care - A dentist-patient relationship existed, creating a professional duty
- Breach of Standard of Care - The dentist failed to act as a reasonably competent dentist would under similar circumstances, based on Dental Board of California standards
- Causation - The breach directly caused your injury (both actual and proximate cause)
- Damages - You suffered actual harm (physical, emotional, or financial)
⚠ MICRA Applies to Dentists
California's Medical Injury Compensation Reform Act (MICRA) applies to dental malpractice cases just as it does to medical malpractice. This means:
- Non-economic damages are capped (currently $350K+ for non-death cases under AB 35)
- You must provide 90-day pre-suit notice under CCP 364
- The 1-year/3-year statute of limitations under CCP 340.5 applies
- Expert testimony is required to establish standard of care
👍 What You Can Recover
- Economic damages - Corrective dental work, medical bills, lost wages (NO CAP)
- Non-economic damages - Pain, suffering, disfigurement (CAPPED under MICRA)
- Cost of future care - Implants, prosthetics, ongoing treatment
- Loss of consortium - For spouse's loss of companionship in severe cases
⚖ Legal Basis
Dental malpractice claims in California are governed by the same statutes that apply to medical malpractice, with additional oversight from the Dental Board of California.
Key California Statutes
Code of Civil Procedure Section 340.5
Establishes the statute of limitations for dental malpractice: 1 year from discovery of the injury or 3 years from the date of treatment, whichever comes first. Special provisions exist for minors and cases involving fraud or concealment.
Code of Civil Procedure Section 364
Requires 90-day notice before filing suit against a dentist or other healthcare provider. This notice tolls (pauses) the statute of limitations for 90 days and must specify the legal basis and type of loss sustained.
Civil Code Section 3333.2
The MICRA damages cap provision. As modified by AB 35 (effective January 1, 2023), non-economic damages in non-death cases start at $350,000 and increase annually. For wrongful death cases, the cap starts at $500,000.
Business & Professions Code Sections 1600-1976
The Dental Practice Act governs licensing and discipline of dentists in California. The Dental Board of California enforces these provisions and can suspend or revoke licenses for negligent conduct.
Dental Board of California Standards
The Dental Board of California (DBC) establishes and enforces standards of care for dental professionals. Key regulations include:
📋 Informed Consent Requirements
▼Under California law and DBC regulations, dentists must obtain informed consent before treatment. This includes explaining:
- The proposed treatment and its purpose
- Material risks and potential complications
- Alternative treatment options
- Consequences of declining treatment
- Prognosis with and without treatment
Failure to obtain proper informed consent can form the basis of a malpractice claim even if the procedure was performed correctly.
🔬 Diagnostic Standards
▼Dentists must conduct appropriate diagnostic procedures before treatment, including:
- Comprehensive oral examination
- Appropriate radiographs (X-rays) for diagnosis
- Review of medical history for contraindications
- Periodontal evaluation when indicated
- Documentation of findings in patient records
💉 Treatment Standards
▼The Dental Board requires dentists to meet standards including:
- Proper sterilization and infection control
- Appropriate anesthesia selection and administration
- Accurate identification of teeth for treatment
- Proper technique for all procedures
- Appropriate follow-up care and instructions
- Timely referral to specialists when needed
📝 Record-Keeping Requirements
▼California requires dentists to maintain accurate and complete patient records for at least 7 years (longer for minors). Records must include:
- Patient identification and contact information
- Medical and dental history
- Examination findings and diagnoses
- Treatment plans and consent forms
- Radiographs and other diagnostic images
- Treatment rendered and materials used
- Medications prescribed
Statute of Limitations (CCP 340.5)
📅 1 Year from Discovery
You must file within 1 year after you discover (or should have discovered) the injury and its negligent cause. This is subjective based on when you knew or reasonably should have known.
📅 3 Years from Treatment
Absolute outer limit. Regardless of discovery, you cannot file more than 3 years after the date of the dental treatment, with limited exceptions.
💡 Important Exceptions
- Foreign objects: If a dental instrument or material is left in your body, the 3-year limit does not apply
- Fraud or concealment: If the dentist intentionally concealed the negligence, additional time may be allowed
- Minors: Children under 6 have until age 8 to file; children 6+ follow standard rules through a guardian
- 90-day tolling: Filing a CCP 364 notice extends your deadline by 90 days
✅ Evidence Checklist
Building a strong dental malpractice case requires comprehensive documentation. Use this checklist to gather the evidence you need.
📋 Dental Records
- ✓ Complete treatment records from the negligent dentist
- ✓ All X-rays, CT scans, and other imaging
- ✓ Treatment plans and consent forms signed
- ✓ Billing records and insurance claims
💉 Corrective Treatment
- ✓ Records from treating dentist/specialist who identified the problem
- ✓ Oral surgeon or specialist consultation notes
- ✓ Estimates for future corrective work needed
- ✓ All bills for corrective treatment to date
📷 Visual Documentation
- ✓ Photos of injury, infection, or failed dental work
- ✓ Before and after photos if available
- ✓ Photos showing progression of damage over time
- ✓ Video documentation if applicable (speech issues, etc.)
💰 Financial Documentation
- ✓ All dental and medical bills related to the injury
- ✓ Proof of lost wages (pay stubs, employer letter)
- ✓ Out-of-pocket expenses (travel, medications)
- ✓ Insurance explanation of benefits (EOBs)
Expert Witness Requirements
California requires expert testimony to establish the standard of care in dental malpractice cases. Before filing suit, your attorney must consult with a qualified expert under CCP 411.30 (Certificate of Merit).
💡 Finding a Dental Expert
- Same specialty: Ideally, the expert should practice in the same specialty (e.g., oral surgery, endodontics)
- California licensed: While not required, California-licensed experts understand local standards
- Active practice: Currently practicing dentists are more credible than retired ones
- Board certification: Specialty board certification adds credibility
💰 Damages
Understanding what damages you can recover is critical in dental malpractice cases. California's MICRA caps apply, but economic damages remain unlimited.
🌱 AB 35: Updated MICRA Caps for Dental Malpractice
AB 35 (effective January 1, 2023) increased the caps on non-economic damages. The caps continue to increase annually by 2% until 2034.
| Year | Non-Death Cases | Wrongful Death Cases |
|---|---|---|
| 2023 | $350,000 | $500,000 |
| 2024 | $357,000 | $510,000 |
| 2025 | $364,140 | $520,200 |
| 2033 | $750,000 | $1,000,000 |
Types of Recoverable Damages
| Damage Type | Examples | MICRA Cap? |
|---|---|---|
| Economic Damages | Corrective dental work, oral surgery, medical bills, lost wages, future dental care costs | NO CAP - Fully recoverable |
| Non-Economic Damages | Pain and suffering, emotional distress, disfigurement, loss of taste/sensation | CAPPED per AB 35 schedule |
| Loss of Consortium | Spouse's claim for loss of companionship (in severe injury cases) | CAPPED - shares in non-economic limit |
📊 Sample Damages Calculation
Example: Nerve Damage from Wisdom Tooth Extraction (2024)
Special Damage Considerations for Dental Cases
🦷 Permanent Nerve Damage
Permanent numbness or altered sensation significantly increases non-economic damages. Document the impact on eating, speaking, and quality of life.
💉 Future Dental Care
Obtain a "life care plan" from a dental expert estimating all future treatment needs - implants, crowns, replacements - over your lifetime.
😷 Disfigurement
Visible damage affecting your smile or face increases non-economic damages. Photos and testimony about social/professional impact are critical.
🍴 Loss of Taste/Sensation
Lingual nerve damage affecting taste is a significant quality of life impact. Document how this affects eating enjoyment and nutrition.
📝 Sample Language
Use these paragraphs to draft your dental malpractice demand letter or 90-day notice. Customize the highlighted portions for your specific situation.
Dear [DENTIST NAME], DDS:
Please take notice that pursuant to California Code of Civil Procedure Section 364, [PATIENT NAME] intends to commence legal action against you for professional negligence (dental malpractice). This notice is being provided at least 90 days before the filing of said action as required by law.
The standard of care for [procedure type] requires the dentist to identify the proximity of vital nerve structures prior to extraction, use appropriate surgical technique to avoid nerve injury, and inform the patient of material nerve damage risks. You breached this standard by [specific breach - e.g., failing to obtain a cone beam CT scan to identify nerve position, using excessive force during extraction, failing to warn of nerve damage risks].
The standard of care for prosthetic dentistry requires proper preparation, accurate impressions, verification of fit before cementation, and adjustment to ensure proper occlusion. You breached this standard by [specific breach - e.g., cementing an ill-fitting crown without adjustment, failing to verify occlusion, using improper preparation technique]. As a result, [PATIENT NAME] has required [describe corrective treatment needed].
The standard of care requires dentists to maintain sterile technique, identify signs of infection, prescribe prophylactic antibiotics when indicated, and provide appropriate follow-up care. You breached this standard by [specific breach - e.g., failing to maintain sterile conditions, failing to prescribe antibiotics when indicated by patient's medical history, failing to diagnose and treat the developing infection at follow-up].
Physical Injuries: [Describe - e.g., permanent numbness of lower lip and chin, chronic pain, inability to taste food on left side of tongue, damage to teeth #18 and #19 requiring extraction]
Economic Damages: Cost of original negligent treatment: $[AMOUNT]; corrective dental treatment to date: $[AMOUNT]; estimated future dental care: $[AMOUNT]; lost wages: $[AMOUNT]; and other out-of-pocket expenses: $[AMOUNT]. Total economic damages: $[TOTAL].
Non-Economic Damages: [PATIENT NAME] has experienced significant pain and suffering, emotional distress, embarrassment regarding [disfigurement / inability to eat normally / speech difficulties], and permanent loss of [sensation / taste / function], the full value of which will be presented at trial, subject to applicable MICRA limitations.
To resolve this matter without litigation, we demand compensation in the amount of $[TOTAL DEMAND]. This represents [PATIENT NAME]'s economic losses of $[AMOUNT], plus appropriate compensation for non-economic damages within MICRA limitations.
Please have your malpractice insurance carrier or legal counsel contact the undersigned within 30 days to discuss resolution. If we do not hear from you, we will proceed with filing a complaint in the appropriate California Superior Court upon expiration of the 90-day notice period.
This notice is sent in compliance with Code of Civil Procedure Section 364 and tolls the statute of limitations for 90 days from the date of service. Please preserve all records, radiographs, models, and other evidence related to [PATIENT NAME]'s treatment.
🚀 Next Steps
Dental malpractice cases require careful navigation of MICRA requirements and expert witness coordination. Here is what to do after sending your demand letter.
90-Day Notice Timeline
Day 1: Send Notice
Mail certified notice to the dentist and any dental practice entities. Keep proof of mailing and delivery receipts.
Days 1-30: Initial Response
Dentist's malpractice insurer receives notice and assigns an adjuster. They may contact you or your attorney.
Days 30-60: Investigation
Insurance company reviews dental records, consults with dental experts, and evaluates the claim.
Days 60-90: Negotiation
Settlement discussions if liability is acknowledged. Defense preparation if claim is disputed.
Day 91+: File Lawsuit
If no resolution, file complaint in California Superior Court. The 90-day period tolled your statute of limitations.
If No Response or Denial
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Consult a Dental Malpractice Attorney
Most dental/medical malpractice attorneys offer free consultations and work on contingency. Given MICRA's complexity and expert requirements, experienced counsel is essential.
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Obtain Complete Dental Records
Request your complete records from the negligent dentist. Under California law, they must provide copies within 15 days. Get records from any subsequent treating dentists as well.
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Secure Expert Review
Before filing suit, have a qualified dental expert review your records. They must confirm breach of standard of care and causation for the Certificate of Merit (CCP 411.30).
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File Dental Board Complaint
Consider filing a complaint with the Dental Board of California. While this won't get you compensation, it creates a record and may result in license discipline.
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File Lawsuit in Superior Court
Dental malpractice cases are filed in California Superior Court. Filing fees are approximately $435-$450. Your complaint must include the Certificate of Merit.
⚠ Why You Need an Attorney
Dental malpractice cases are challenging. Here's why professional help matters:
- Expert costs: Dental experts charge $500-$1,000+ per hour for review and testimony
- MICRA navigation: Damages caps, notice requirements, and special rules require expertise
- Defense resources: Dentist malpractice insurers have experienced defense teams
- Contingency fees: Attorneys front all costs and only collect if you win
- Case screening: Good attorneys reject weak cases, so acceptance indicates merit
Get a Free Case Evaluation
Dental malpractice cases have strict deadlines and require expert testimony. Get a free consultation with an experienced California dental malpractice attorney.
Free ConsultationCalifornia Resources
- Dental Board of California: dbc.ca.gov - File complaints, verify licenses, view enforcement actions
- California Courts Self-Help: selfhelp.courts.ca.gov - Court forms and procedures
- State Bar Lawyer Referral: calbar.ca.gov - Find certified specialists in medical/dental malpractice
- California Civil Code: leginfo.legislature.ca.gov - Full text of MICRA statutes