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How much should I claim for pain and suffering in a dental malpractice suit?

New York, NY |

I had a wisdom tooth removed and the following week I had an old filling drilled from the tooth in front of where the wisdom tooth was. Some bits of metal from the filling fell into the hole where the wisdom tooth was. This was discovered 2 years later by xray at a dental check-up. I have had the bits of metal extracted in a very painful procedure which involved cutting away part of my jaw as the bone had healed around the metal. It was suggested to have them removed immediately by a specialist on their discovery because they were not sterile. The dentist has admitted full responsibility and offered to settle under his malpractice insurance. I have worked out most of the details of the amount I wish to claim for but I am unsure how to value my "pain, suffering and inconvenience"

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Attorney answers 3


Are you actually dealing with the malpractice carrier? If so, you are lucky as these carriers usually fight very hard and don't usually settle until a case is in suit and there as has been full discovery. The problem you have is that no one here can properly evaluate your pain and suffering by the small amount of information you gave. It sounds like you had no problems until you needed to have the surgery. If tht is true, how long were you in pain after the surgery, how long was the surgery, do you have current problems, etc.? There are tools a personal injury lawyer can use to get information on similar settlements and verdicts. You might consider using a lawyer to finish this off because you have no ability to compare your case to others and the carrier will try to take advantage of you. It might be beneficial to pay a lawyer a fee to get more rather than settle for less than you are entitled to. I am a former federal and State prosecutor and now handle personal injury/malpractice cases. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers.

Eric Rothstein
11 Park Place, Suite 1100
New York, New York 10007
Phone: 212-577-9797
Web site:
Free consultations by phone or in person

I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 577-9797 or via email at I was named to the Super Lawyers list as one of the top attorneys in New York for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. The above answer is for informational purposes only and not meant as legal advice.


Stop what you are doing right now and get an experienced lawyer to help you. It is very tempting to think that you will save money by not having a lawyer, but that is not true. You have no way to evaluate your case yourself. If the insurance company is dealing directly with you instead of a lawyer they will have no worries that the claim will turn into a lawsuit if it doesn't settle. They will offer you a handout instead of a fair settlement. Assuming by some miracle they do offer you a fair settlement, how will you know it's fair without competent legal advice?

Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to Avvo questions are for general information purposes only, and should not be construed or relied upon as legal advice.


Malpractice has a 2.5 year statute of limitations. It can be tolled by latent malpractice which is not reasonably discoverable/knowable by a patient, in which case the date of discovery of the malpractice becomes important for calculating the statute of limitations. the possibility of future problems is the major factor in assessing dental malpractice cases. your pain and the additional procedures have value but the possibility of future problems is where the significant damages often lie. That possibility is very difficult to explore without the help of an experiences attorney. You should at least seek a free initial consultation with an experienced attorney in your area to discus these issues.

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