Okla. Dentist HIV Scare: Can Patients Sue?

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By Andrew Lu on April 01, 2013 10:46 AM

An oral surgeon in Oklahoma is accused of using unsanitary practices and possibly exposing his patients to hepatitis and HIV. Now many are wondering if the dentist can be sued if a patient contracted HIV or some other disease due to the doctor's alleged carelessness.

The Oklahoma State Department of Health is offering free screenings for the 7,000 patients who saw Dr. W. Scott Harrington over the past six years, reports The Oklahoman.

Hundreds of people were tested over the weekend after officials announced that poor hygiene practices at Harrington's two clinics in Tulsa and Owasso created a public health hazard. Former patients are being checked for hepatitis B, hepatitis C, and HIV.

Medical Malpractice?

Generally, legal liability for medical malpractice can be shown by establishing negligence by the medical care provider.

Oftentimes, medical malpractice can include acts like a wrong diagnosis, failure to diagnose, mistakes made in surgery, and other medical practice errors. However, medical malpractice can also include negligence and carelessness in cleaning and maintaining a building and supplies.

For example, oral surgery and cleaning require a reasonably clean room and tools. Given the personal nature of the work of a dentist, one would reasonably expect that the device being placed in your mouth has been properly cleaned since it was used in the mouth of another patient.

As a result, if a dentist is unreasonable in not cleaning the tools and equipment and this causes injury to a patient, the dentist could be liable for the injuries.

The Standard of Care

The standard that courts use to determine professional negligent is typically whether the medical care provider's conduct falls below a generally accepted standard of medical care.

To establish the standard to be applied, a plaintiff generally must present the testimony of a medical expert, qualified in the same area of medicine as the defendant, indicating what standard, or level of care, is commonly met by those recognized in the profession as being competent and qualified to practice.

Dentists and medical professionals aren't the only possible targets for potential lawsuits in HIV transmission cases, however.

In one notable case involving a patient who contracted HIV from a Florida dentist in the 1980s, the patient sued the medical insurance company which had referred him to the dentist. That lawsuit led to an undisclosed settlement, The New York Times reported.

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