MLMIC Dental

Commencing a Dental Malpractice Lawsuit

Commencing a Dental Malpractice Lawsuit

Repurposed from The Scope, First Quarter, 2026

As a dentist, you have spent time and energy to perfect your expertise and develop your skills. But, despite how proficient and attentive you might be, there is no guarantee that you will stay immune to dental malpractice allegations and/or a dental malpractice lawsuit. Being served with a “Summons and Complaint” naming you as a defendant in a dental malpractice case can be alarming, to say the least. However, if you are prepared to respond appropriately, you will have taken an important step toward successfully defending yourself.

It is very important that dentists, like other healthcare professionals, understand the ins and outs of a malpractice lawsuit. This article will provide important information regarding the fundamentals of a dental malpractice lawsuit.

How Should You Prepare for a Dental Malpractice Case?

Many tend to believe that a dental malpractice case begins when a Summons and Complaint are served or filed in court. It is important to consider that the potential for a dental malpractice case begins with your treatment of the plaintiff, as the allegations that form the basis of the lawsuit arguably stem from the treatment you provided. While the lawsuit might not be filed until years after the treatment of the plaintiff, your proactive management of any dental charts or records pertaining to your patients, ensuring they are accurate and complete, will better support your defense.

Dental providers have a professional obligation to keep complete and accurate dental records in their original format.1 The failure to maintain complete and accurate records may constitute professional misconduct.2  By generating and maintaining complete records, you are complying with the applicable rules and also ensuring you will be prepared if you happen to face a lawsuit.

By the time you receive notification of the lawsuit, you may not have any independent recollection of treating the patient in question. At that point, your defense will be based on the patient’s dental records you created. The attorney responsible for defending you will also base your defense on the information contained in the dental records. Thus, a complete record is an essential component of your defense.

Often, before a malpractice lawsuit is filed, the patient will request their records for purposes of retaining an attorney or determining whether they will file a lawsuit. The plaintiff’s attorney will review the records to determine if there was any malpractice committed by the dentist in question. If the plaintiff’s attorney determines that there is merit to the case, the attorney will likely agree to represent the patient on a contingency fee basis, meaning the attorney will get paid if and only if the plaintiff receives compensation. It is, therefore, imperative that your record demonstrates the good care you provided. If it is a strong record, the attorney may conclude that there was no malpractice and not take the case.

How Does a Dental Malpractice Lawsuit Begin?

Officially, a lawsuit begins when the plaintiff files the Summons and Complaint in the court where they intend to sue the defendant. The documents will identify the parties named in the lawsuit, the court in which the case is being filed, and a general statement of the allegations of dental malpractice.

When a Summons and Complaint are served, it is important that you do not go back to the records to alter or edit them. Altering or falsifying records may constitute professional misconduct under Education Law 6509.3  In fact, altering or editing records after commencement of a lawsuit can result in punitive damages being awarded or allegations of professional misconduct being filed.4 If there is something missing from the dental records, you should discuss the specifics with your attorney, who can help you safely address the issue, if necessary.

In New York, along with the Summons and Complaint, the plaintiff’s attorney also must file a Certificate of Merit.5 In the Certificate of Merit, it is affirmed that a dental expert has reviewed the patient’s records and concluded that there is a reasonable basis for the lawsuit.6

Practically, what this means is that the plaintiff’s attorney must consult with a dental expert who will review the plaintiff’s dental records to determine if there is a meritorious claim. The purpose of this requirement is to ensure that frivolous lawsuits do not enter the legal system.7

It is essential to keep in mind that you are required by the terms of your insurance policy to immediately notify MLMIC when you are served with a Summons and Complaint. An Answer must be prepared and served to the plaintiff in a timely manner in order to avoid a default judgment. MLMIC will start investigating the claim and, under the insurance policy’s terms, will appoint an attorney to defend you. If you do not inform your insurance company as soon as reasonably possible, the insurance company could deny coverage as per the terms of the insurance policy.

Always Answer!

DO NOT IGNORE A SUMMONS AND COMPLAINT!

Depending on how the Summons and Complaint are served, there are only 20 or 30 days to interpose an Answer.8 Even if you think a case is not meritorious, you are still required to interpose an Answer to the Complaint.

The Answer is where you will get a chance to respond to the allegations set forth in the Summons and Complaint. There might be certain allegations that you will admit, others that you may deny, or even some that you might deny having any knowledge of in order to answer. Your attorney will be the one who will draft the Answer, where responses to the allegations will be stated. The Answer will also interpose affirmative defenses on your behalf. Failure to respond to the Complaint can result in a default judgment against you, which would mean that you essentially lose the liability case without having the opportunity to defend your care on its merits.

Small Claims: A Different Animal Altogether

Often, plaintiffs do not have a case that would warrant a plaintiff’s attorney taking it. This could be because the case is not meritorious or its value is so low that it would not financially make sense for a plaintiff’s attorney to handle it.

In such a situation, plaintiffs might choose to go to Small Claims Court, where they can file the lawsuit themselves. The most they can recover is $3,000, $5,000, or $10,000, depending on the county where the Small Claims Court is located. Small Claims Court is informal, and many plaintiffs appear pro-se (without an attorney).

Unlike in Supreme Court, a case in Small Claims Court is commenced by filing a statement of claim that explains the reason for the lawsuit as well as the amount of the claim. In Small Claims Court, judges usually give a limited amount of time to both sides to argue their cases, and there is no jury, with the judge being the final arbiter.

In Supreme Court, however, the process is significantly more formal, and both sides have adequate time to plead their case. The jury is the final arbiter if the parties cannot settle the lawsuit.

One relative advantage that litigants have in Small Claims Court is that cases are typically resolved faster than Supreme Court cases, which can drag on for years. It is also important to remember that in dental malpractice cases, whether in Small Claims or Supreme Court, the plaintiff will be required to produce an expert witness. Notably, even if you are facing a lawsuit in Small Claims Court and it involves a small damages claim, you are entitled to an attorney under the terms of your MLMIC insurance policy. An attorney will best protect your interests and help guide you through the litigation process.

Statute of Limitations

The statute of limitations is basically the deadline for filing a lawsuit. In New York State, the statute of limitations for filing a dental malpractice lawsuit is 2 years and 6 months from the date of the alleged malpractice.9 What this essentially means is that if the plaintiff does not file the lawsuit within the specified time period, then the case is subject to dismissal on motion as untimely.

However, there are some notable exceptions to the 2.5-year deadline to file a lawsuit. These include:

Foreign body exception: If the malpractice allegation stems from a foreign object being left inside the patient, then the suit must be filed within 2.5 years of the alleged malpractice or within one year of discovery, whichever is later.10

Infancy: A minor has a total of 10 years from the date of the malpractice to file the lawsuit.11

Mental disability: If a patient is suffering from a mental disability at the time of the alleged malpractice, they have 10 years to file a lawsuit.12

Lavern’s Law: This exception only applies to malpractice lawsuits that involve failure to diagnose cancer/tumor allegations. Under Lavern’s Law, the 2.5-year statute of limitations starts from the date the patient discovers, or should have reasonably discovered, the cancer misdiagnosis.13

Conclusion

Malpractice litigation is sometimes daunting, time-consuming, and often a frustrating process. However, having some foundational knowledge of the lawsuit process in New York hopefully gives you at least a bit of confidence in how to respond and what to expect if you are facing, or are ever faced with, a lawsuit.

As a MLMIC policyholder, you can feel confident knowing that you have a MLMIC-appointed defense counsel by your side. Our legal team at MLMIC is well-versed and experienced in all aspects of dental malpractice litigation, and our attorneys will work with you whether you are facing a case in Small Claims Court or Supreme Court. No matter the stage of a claim or suit, MLMIC attorneys are here to advise you.

MLMIC policyholders can reach out to our healthcare attorneys for questions about litigation, claims, legal papers, or other healthcare law inquiries by calling (877) 426-9555 Monday-Friday, 8 a.m.-6 p.m. or by email here.

Our 24/7 hotline is also available for urgent matters after hours at (877) 426-9555 or by emailing hotline@tmglawny.com.

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If you are not already a MLMIC insured, learn more about us here.

This document is for general purposes only and should not be construed as medical, dental or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, dental, medical or professional obligations, the applicable state or federal laws or other professional questions.

  1. N.Y. Comp. Codes R. & Regs. tit. 8, § 29.2 ↩︎
  2. Id. ↩︎
  3. N.Y. Educ. Law § 6530 (McKinney) ↩︎
  4. Gomez v. Cabatic, 159 A.D.3d 62, 70 N.Y.S.3d 19, 20 (2018) ↩︎
  5. N.Y. C.P.L.R. 3012-a (McKinney) ↩︎
  6. Id. ↩︎
  7. Id. ↩︎
  8. https://ww2.nycourts.gov/COURTS/nyc/civil/answeringcase.shtml#:~:text=If%20you%20have%20received%20a,bring%20the%20summons%20with%20you ↩︎
  9. NY CPLR § 214-A (2024) ↩︎
  10. Id. ↩︎
  11. N.Y. C.P.L.R. 208 (McKinney) ↩︎
  12. Id. ↩︎
  13. N.Y. C.P.L.R. 214-a (McKinney) ↩︎