Case Commentary – Dental Malpractice Claim Allowed to Proceed Nine Years After Surgery
A plaintiff is allowed to proceed with her dental malpractice claim, arising from TMJ surgery that was conducted nine years earlier. This case illustrates the legal complexity surrounding medical and dental negligence claims, and why speaking to an experienced lawyer should be your first step.
The limitation period and “discoverability”
In previous posts, we have explained that the two-year limitation period for most personal injury claims will begin when a plaintiff has “discovered” that they had a potential legal claim. But what does it mean to discover a claim?
Discovery of a potentially negligent party requires more than knowing who they are. A plaintiff must discover that this person’s acts or omissions were likely to give rise to liability. In other words, the claim is discovered when the plaintiff knew, or with the available information ought to have known, that the injury they suffered was caused or contributed to by the act or omission of a particular party.
The plaintiff in this claim underwent two TMJ surgeries in 1992, the second of which involved inserting an implant. In 1994, another surgeon removed the implant, and advised her it was damaged. Subsequent surgery in 1997 removed debris from the implant.
In 2001, the plaintiff was in a minor accident involving her jaw that caused significant pain, and began to research the implant and retained specialized legal counsel. She learned that the implants were defective as well as biologically hazardous, and began a dental negligence claim arising from the first surgery. She alleged that the dentist negligently installed the defective implant, and did not advise her of the long-term biological hazard it posed.
The dentist asked the court to throw out her claim, as it was commenced in 2001, nine years after the surgery. The court refused to do so, finding that a cause of action accrues when the plaintiff knew some damage had occurred and had identified the negligent party. Here, the plaintiff only discovered the dentist responsible for her issues after she researched the nature of the implant.
Legal advice for possible dental malpractice claims
Dental malpractice and medical negligence claims are inherently complex, and often require careful exploration by expert professionals to ascertain the true cause of an ongoing injury, and whether an injured person has a possible legal claim for compensation.
A Derfel Injury Law, our personal injury lawyers have assisted clients pursuing dental malpractice and other claims against medical professionals. We understand the issues, including potential limitation periods, and will take steps to protect your legal rights and any opportunity to advance your claim. We can meet clients at convenient locations in Toronto. Contact us online or call 416-847-3580 to make an appointment to discuss your potential claim.