Victim of malpractice must retain an orthodontist to criticize a dentist engaging in orthodonticsThe mother and father of Sadie Davis believed that James A. David provided sub-standard orthodontic care to their daughter and filed a malpractice lawsuit. In accordance with the civil procedure applicable to malpractice claims, their Complaint was accompanied by an Affidavit of Merit from another dentist, confirming a breach of the standard of care. On motion of the Dentist's insurer, however, the trial court dismissed Sadie's malpractice claim because the accompanying Affidavit of Merit was signed by a regular dentist and not by an orthodontist.
Sadie's parents appealed, arguing that since the dentist, David, had not trained in orthodontics, he was not practicing a "specialty" and therefore a regular dentist was the proper expert to execute the Affidavit of Merit. The Court of Appeals disagreed and upheld the dismissal of Sadie's claim. It ruled that since David claimed that he spent 80-90 percent of his time practicing orthodontics, and since dentists are not required to train in orthodontics in order to practice the specialty, a suit against David must be accompanied by an Affidavit of Merit from a professional who specialized in orthodonics. The decision appears to be a straight-forward application of prior holdings, but it means that Sadie won't get her day in court to prove that her dental care was mismanaged.
We do wonder why a professional would be granted the protection afforded a "specialist" when he need not actually be a "specialist" to engage in the work he was allegedly mis-performing.