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Dental Abuse Cases: Probable Class Action or Not?

Posted 29 Nov 2015 by


Class Action Litigation

Dental Abuse Cases – Probable Class Action or Not?

We say no, not in Florida.
There has been a lot of discussion in the media and in social media about whether the recent claims against Dentist Howard Schneider will constitute a class action lawsuit.  Clearly, each victim can individually proceed under claims of professional malpractice and/or abuse and/or billing irregularities.  The question is whether one case can essentially resolve all claims at once. We think this will be difficult given the fact that Florida law mandates a pre-suit discovery process in cases of medical malpractice. We plan to proceed to dot all of the i’s and cross all of the t’s for our clients, while making sure the state and federal investigation also gets full cooperation.

What needs to happen to have a “class action”?

The four elements needed to have one case resolve everyone’s disputes are: (1) numerosity, (2) commonality, (3) typicality and (4) adequacy.

(1) Numerosity simply means that there are enough victims that having them all involved in different lawsuits is impractical. Clearly, there are a lot of victims. This might be met.

(2) Commonality means that the questions of fact and law are similar.  That is fairly clear here, although the nature of services provided and variation of the claims is pretty different and broad.

(3) Typicality focuses on whether the representative parties adequately represent those who are not in the lawsuit.  The claims aren’t all typical as this isn’t one act or product that harmed everyone similarly.  Further, although there are common threads, there are many differences and various claims from medical malpractice to abuse to billing issues. This fails to meet the requisite standards in Florida.

(4) Finally, adequacy focuses on whether those leading the class are qualified to do so, since they essentially will be able to bind all victims to one resolution.  Adequacy also refers to the representative client as well as the lawyer, as counsel must be experienced and competent in this area- dental malpractice and civil trial law.  Certainly, the right client and right lawyer (or team of lawyers) could attempt to move forward on behalf of all, but this is an unusual case as it involves medical malpractice- specifically. We don’t think it meets the requirements at law.

And there is another problem- Florida medical malpractice law.

Why medical malpractice is different?

Because this action involves children and allegations of professional malpractice, we must consider Section 766.106 and 766.203, Florida Statutes, which govern the complicated discovery period which must occur BEFORE a suit against a doctor or dentist can be filed.  Lawyers seeking to certify a class action or “run to the courthouse” need to contemplate medical malpractice law. 

Our research shows you can’t get around it, even if the victim is simply suing related to billing issues according to Paulk v. National Medical Enters., 679 So. 2d 1289 (Fla. Dist. Ct. App. 4th Dist. 1996), because his actions were tied to treatment.  Also, there may be important insurance coverage issues which would prevent victims from recovering damages against any professional insurance a negligent or abusive dentist may have if the pre-suit procedure is not followed correctly. 

Each victim must notify each prospective defendant (the doctor and his practice) of the intent to initiate litigation for medical negligence. In fact, no suit may be filed for a period of 90 days after notice is mailed to any prospective defendant. Only after completion of the pre-suit process can one proceed and we have never seen a case where this pre-suit process can be waived or substituted.

Last year, we closed out a case against a local chiropractor (who is no longer practicing), as well as other Defendants.  More about that suit is located here- http://www.news4jax.com/news/Lawsuit-filed-for-injured-Jacksonville-boxer/18455608.  We have experience in this area and John is Board Certified in Civil Trial Law, which is the Florida Bar’s “Expert” standard when it comes to lawyers.  It requires a peer review by fellow lawyers, attendance at further advanced level courses, completion of many jury trials in this area and passage of a full day examination. Research your lawyers wisely.


More Information:

General Information About Dental Abuse Civil Cases:

Case Against Howard S. Schneider:

National News Stories About Schneider Case:

Other Resources:

Evidence Locker:


The Law Offices of John Phillips are based in Jacksonville and Jacksonville Beach, Florida, but John is licensed in Florida, Georgia and Alabama and before the U.S. Supreme Court. We will consult wherever injustice lives. In addition to personal injury and wrongful death, our firm handles family law matters and select criminal defense cases. You can contact us at help@floridajustice.com.

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