Laws vary from state to state, but the elements of a liability claim for dental malpractice or negligence by a dentist are generally:

• a dentist is a defendant;

• the claim or claims at issue concern treatment, lack of treatment, or a departure from accepted standards of dental care;

• the defendant owed the plaintiff a duty of care;

• the defendant breached its duty of care by not meeting the required standard of care; and

• the defendant’s act or omission proximately caused the plaintiff’s injury (was the primary cause of the injury).

A claim for dental malpractice or negligence by a dentist may be brought as a simple negligence action based on the elements of a negligence claim—which are often located in a state’s court opinions (also known as case law or common law).

And in some states a claim for dental malpractice or negligence by a dentist may be defined by the state legislature in the state’s statutes—whether broadly as a health care liability claim against a health care provider, or more specifically as a claim for dental malpractice against a dentist.

In Delaware, dental malpractice or negligence claims are a type of professional malpractice governed by both case law and statutory law. To establish a dental malpractice claim in Delaware, a plaintiff must demonstrate that the dentist owed a duty of care to the patient, breached that duty by failing to adhere to the accepted standards of dental practice, and that this breach was the proximate cause of the patient's injury. Delaware's Health Care Malpractice Insurance and Litigation Act, found in Title 18 of the Delaware Code, outlines the procedures and requirements for filing such claims, including the necessity of an affidavit of merit from a qualified expert to accompany the initial filing. This statute also sets forth the standards for expert testimony and the statute of limitations for bringing a claim. It is important for plaintiffs to adhere to these statutory requirements to successfully bring a dental malpractice claim in Delaware.