Hello, my name is Ely. Welcome to JustAnswer. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest
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I am very sorry for your situation. First of all, please allow me to explain how this works, and then what someone in your situation may do about this.OVERVIEW
To sue in state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract
," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state. Every cause of action has its own elements, and each element has to be satisfied for a cause of action to be successful in court.
Here, you very likely have a complaint for two causes of action: fraud
and medical malpractice
The essential elements of a cause of action for fraud are "representation
of a material existing fact, falsity, scienter (knowledge of the falsity), deception and injury." Channel Master Corp. v Aluminium Ltd. Sales Corp., 4 NY2d, at 407, supra).
The requisite elements of proof in a medical malpractice [action] are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage." Amsler v Verrilli, 119 AD2d 786; see, Bloom v City of New York, 202 AD2d 465)
While there is a statute of limitations
for fraud (6 years per N.Y. Civ. Prac. L. & R. §213
) and medical malpractice (2.5 years), the statute may be "tolled" if the discovery was not reasonably made until later.ATTORNEYS, INSURANCE, AND YOU
Now this is all good and well said, but the question remains - how do you proceed? Well, the first thing is to retain counsel. The attorney should take this on a contingency basis, meaning they do not get paid unless you do. Usual set up is their take is 33% settlement, 40% win at trial, 45% at appeal; plus some office costs. Everything is negotiable.
Counsel is necessary because file suit if needed whereas without counsel, the dentist and his med-mal (medical malpractice) insurance policy
would not see you as much of a threat without an attorney since you filing or winning a suit without counsel is unlikely.
Then the attorney works out a deal with the dentist's med-mal insurance company and settles out of court - about 90% of such cases do. If not, then this goes to trial. Add to this that you also have leverage of possibly filing a criminal complaint
against the dentist for fraud, which can help to get a good deal in settlement.
May I recommend the NY Bar referral program - here
. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.
I hope this helps and clarifies. Good luck.IMPORTANT
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