Originally published in MLMIC Insurance Company’s Dental Dateline newsletter, the following article, courtesy of Fager Amsler Keller and Schoppmann, LLP, reported that the number of dental professional liability cases filed in New York’s small claims courts had significantly increased over the previous 10 years.

MLMIC Insurance Company continues to see dental small claims suits filed against our insured dentists throughout the state. Patients may bring dentists into city court to seek compensation after perceived negligent treatment.

If you are being sued by a patient in small claims court, promptly call MLMIC Insurance Company. A determination will be made, based upon the allegations, whether to assign an attorney. Resist the urge to handle the case yourself just because it is in a small claims court. If nothing else, when you are represented by legal counsel, a judge may grant professional courtesy and hear your case earlier than if you did not have an attorney. This may save you many hours away from the office, particularly when there is a crowded municipal court docket.

The Claim

What can you expect from your day or days in small claims court?

A small claim proceeding is commenced like this: For a nominal fee, usually $15 to $20, a dissatisfied patient files a “Notice of Small Claim” with the city court or, in towns and villages, the justice court, and becomes a “claimant.” The notice usually contains allegations of negligence, although it may lack the usual legal terms that advise a defendant about the precise nature of the complaint(s) against the dentist.

On occasion, the claim of malpractice arises as a counterclaim or response to a dental small claims action by the dentist or collection agency to collect unpaid dental fees. Usually, the defendant dentist is able to ascertain the nature of the claim based upon what happened during the last few office visits or from recent correspondence from the patient. Regardless, the patient must provide the specific details of their complaint at the hearing.

Many claimants appear in court without counsel, or “pro se.” When claimants are not represented by counsel, the judge or hearing officer tends to be more patient with the claimant. Moreover, the rules of evidence and procedure do not apply in small claims court. Essentially, the claimant is given an opportunity to tell their story. The length and tone of the claimant’s presentation depend a great deal upon the judge. It is important to understand that sometimes the judge in a local court, particularly in rural communities, is not a lawyer.

The Trial

The physical environment of the courtroom might not be what you expect. In some small claims courtrooms, the room has a judge’s bench, a jury box and tables for the parties. These are often located inside an actual courthouse. However, there are also courtrooms which consist of a room with a folding table and chairs. The building in which that type of courtroom is housed may also host other community activities.

The judge is seated on one side of the table, and you and the claimant may stand shoulder to shoulder on the other side. While your case is being argued, dozens of other people may be waiting their turn to be heard by the judge. Because most small claims cases typically involve landlord/tenant disputes or faulty workmanship by a homeowner’s contractor, in this arena, a dental professional liability case clearly stands out.

As in a regular trial, the claimant presents his/her case first, followed by any witnesses brought to court to support his/her claims. In most of these courts, the judge questions the claimant about the details of the case. In all courts, the defendant then has the opportunity to question the claimant after the claimant has completed their case presentation. This right to question a party, or a witness, is not one of the procedural rules that are “relaxed.” When it is the defendant’s turn to present, the same rules apply.

It is important that you be represented by counsel, even though the demand is for a “small monetary claim,” since the same reporting requirements to insurers and government agencies often apply as they do when a verdict is reached in New York State Supreme Court. Although it is important to have an attorney in such a court proceeding, some small claims judges may direct the defense attorney to keep their contribution “small,” particularly when the claimant has appeared pro se. The advantage to you in having counsel is that your attorney will prepare you for testimony and organize the presentation of your case. If, however, the court is run in a more formal manner by the judge, your attorney will be allowed to question you and elicit your side of the story in a coherent, organized manner. Either way, the claimant also is permitted to question you at the conclusion of the “defendant’s proof.” If pro se plaintiffs begin to make personal attacks, most judges will intervene and stop the claimant at this point, as those attacks are not a permissible part of the process.


Some courts require the parties to appear on the hearing date but do not try the case on that date. Instead, the parties are directed to try to mediate the case for reasons of judicial economy, as cases that are settled do not take up the court’s time. If, however, the parties cannot reach an agreement, a later trial date will be scheduled.

Fortunately, many judges are sympathetic to the demands of a dentist’s office schedule when this concern is presented by counsel and will agree to hear the case the same day, again as a professional courtesy. Nevertheless, the trial could require a full day out of your office. One way to minimize the time you spend in court is to request that your attorney contact the court and the claimant in advance, and make it known to both that the case will not be settled. At that time, counsel can request that a hearing be scheduled. Many courts will agree to this request.

Some New York counties require that all claimants in a small claims matter submit to mandatory arbitration. This entails a full hearing before a judicial hearing officer, usually an attorney or a retired judge, who issues a “nonbinding decision.” The losing party in these situations can request a “trial de novo,” or new trial. This is basically the legal equivalent of a “do-over.” The matter is then tried again before a judge, as if the initial hearing never happened. While the two-procedure system is definitely an inconvenience for the defendant, particularly one who gets a favorable decision from the arbitrator, the arbitration does prepare the defendant and counsel for the arguments the plaintiff will make at trial. Further, this also forces the claimant to win the case twice if the arbitrator has decided in favor of the claimant. Judges are less likely than arbitrators to partially satisfy both parties by “cutting the baby in two,” because they are bound to apply the controlling law in professional liability cases.

At the close of proof, the judge makes his/her decision … or not. Sometimes a judge waits and issues a written decision days, weeks or months after the hearing. There is a sound reason for not issuing a decision from the bench at the close of arguments. Losing claimants have been known to take defeat rather poorly. Thus, mailing the decision eliminates the possibility of an emotional or physical outburst in the courtroom. Unfortunately, the decision of the small claims judge may not be final. As rare as it is, a losing claimant may appeal the decision to a higher court.

The Burden of Proof

The statute which governs dental small claims procedures provides that the “court shall conduct hearings upon small claims in such a manner as to do substantial justice between the parties.” That is an imprecise standard that initially appears to permit the judge to decide a case based upon what she/he thinks is fair. Fortunately, the statute also requires the judge to render her/his decision in accordance with “the rules of substantive law.” That is good news for the dentist defendant because the claimant must meet what is known as “the burden of proof.”

In the New York State Supreme Court, which is the initial trial court for dental professional liability cases above the monetary limits of the small claims court, the plaintiff must prove that the defendant has departed from the accepted standard of care and that the dental negligence was the cause of the plaintiff’s injury. In most cases, this requires the testimony of an expert witness. Since $3,000 is the maximum award allowable by law in village and town courts for a successful claimant ($5,000 in city courts and $10,000 in New York City), claimants very rarely hire an expert. By law, the claimant must have an expert, in most cases, testify to win the case. Practically speaking, unless the claimant has a friend or relative who is both a dentist and willing to testify for free or a nominal fee, it would cost the claimant more to properly prove the case than the claimant could recover from the court.

So, why do people even bother to sue a dentist in a small claims court? Sometimes they are legitimately aggrieved and simply do not know how the system works, i.e., that they require an expert to testify for them. Alternatively, they may be convinced that, despite this, they can somehow succeed. While moral outrage may work in the scripted world of TV judges, it does not usually work in the real world. However, there are occasions when a claimant does succeed in small claims court, despite the lack of expert testimony to support the case. For instance, the judge may rule for the claimant based upon the notion of substantial justice, even though he/she failed to meet the burden of proof, and award damages to the claimant. In such cases, an appeal to a higher court may overturn that decision.


At the appellate level, the issues that the dentist’s counsel can contest on appeal are only matters of law and not matters of fact. In other words, no new testimony is taken, nor is new evidence admitted. The lawyer, or the party who takes the appeal, must argue that the small claims court made an error of law in deciding the case in favor of the claimant. Thus, if the judge decided in favor of the claimant, despite the lack of any expert testimony to support the allegations of a deviation from the standard of care, that would be considered an error of law. If no expert testimony was provided by the claimant at the small claims level and was required, the decision for the claimant is likely to be overturned.

In summary, a verdict against you in small claims court may also have serious repercussions on your time, reputation or even your professional liability history and credentials. Therefore, it is important that you notify MLMIC of service of a small claim proceeding promptly to protect your legal rights.

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