Dental professionals know the importance of mitigating liability through good recordkeeping, good communication, and providing only the most excellent care.
By DIANNE GLASSCOE WATTERSON, RDH, BS, MBA
Dental professionals know the importance of mitigating liability through good recordkeeping, good communication, and providing only the most excellent care. However, some offices fall short in the area of consent. In our increasingly litigious society, understanding and implementing informed consent is more important than ever.
Informed consent is a process whereby a patient voluntarily agrees to proposed treatment after a discussion of advantages, disadvantages, risks, and alternatives. All states require that patients provide informed consent before dental treatment is commenced.
The concept of informed consent evolved from battery, which is the unauthorized touching of another person. A landmark case from New York in 1914 laid the foundation for informed consent, stating: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.” (Schoendorff vs. Society of NY Hospital; 211 N.Y. 215; 1914)
Before informed consent became a standard part of the information process, patients could be subjected to treatments of a medical or dental nature to which they did not give permission. Many legal cases exist where patients were subjected to various forms of treatment that resulted in damaging, disfiguring, or otherwise detrimental outcomes, all without the patient’s permission.
The purpose of informed consent is to assure that the patient has a full understanding of proposed treatment and can make a relevant health-care decision based on the information provided by the health-care professional. Many health-care professionals see the process as burdensome and time-consuming. However, according to the CNA HealthPro Risk Management Program, “The informed consent discussion represents the first step in managing the patient’s expectations for treatment outcomes and reducing the possibility of a misunderstanding.” Patients are less likely to file a lawsuit if they are fully informed about risks and possible outcomes.
There are several components of the informed consent discussion. They are:
1. The nature of the proposed treatment, including necessity, prognosis, time element, and cost.
2. Viable alternatives to the proposed treatment, including what a specialist might offer or the choice of no treatment.
3. What are the foreseeable risks, including things likely to occur and risks of no treatment.
When obtaining informed consent, the dental professional should:
Types of informed consent
Informed consent can be written, recorded, or verbal. Since informed consent is a process, it requires a verbal discussion regardless of whether there is a written form involved. Some states require written consent forms for certain procedures, such as surgical or endodontic procedures. Most risk management companies recommend written consent forms for extensive dental procedures, such as full-mouth reconstructions.
The consent to treat a minor (unless emancipated) must be signed by the parent or legal guardian. A dentist may choose to use a blanket consent form that grants permission for the dentist or hygienist to provide restorative and preventive care for “any and all dental conditions presented by my child” as a patient in the practice. All written consent forms (see Table 1)should be dated and signed by the patient (or guardian/parent for minors), dentist, and a witness (usually another staff member).
If the practice is using digital records only, there are two ways to obtain the patient’s (or guardian’s) signature for the patient record. One way is to use a signature pad, which is a device that allows the patient’s signature to be transferred digitally into the record. The other way is for a hard copy document to be signed by the patient, and then that document is scanned into the patient record.
If a written consent document is not used, the patient’s verbal consent should be documented in the patient chart. Here is an example of documentation of verbal consent: Discussed the diagnosis of ______; purpose, description, benefits, and risks of the proposed treatment; alternative treatment options; the prognosis of no treatment; and costs. The patient asked questions and demonstrates that he understands all information presented during the discussion. Informed consent was obtained for the attached treatment plan.
Oral consents may be satisfactory for routine procedures that you expect the patient to know about, such as a dental examination. Most risk management professionals recommend using written consent documents for all treatment procedures that are invasive or present a high risk.
There is another concept called implied consent. A patient may imply consent by his actions. For example, a patient presents with a toothache, is examined, and is informed radiographs are needed. The patient allows the radiographs to be taken without any objections. In this case, consent is implied by the actions or nonactions of the patient. The key elements are that the patient was aware of the problem and made no objection when the treatment began.
Implied consent is also applicable during emergencies. During a true emergency, a health-care provider can render services without the consent of the patient. Most courts classify an emergency as a situation when care must be rendered at once to protect the life or health of the patient. At such times, consent is implied by law. There are two test questions that the courts apply:
1. Would consent have been given if the patient was able to grant consent
2. Would a reasonable person in the same situation have granted consent? Good Samaritan laws exist in all states and imply consent to treat at the scene in emergency situations.
Another form of consent that is acceptable is telephone consent. However, to be valid, it has to contain all the elements that constitute a valid consent and should be properly documented. For example, if a neighbor or friend brings a minor to his dental appointment, the parent or guardian should be contacted by phone and told that a third party is listening on an extension. The parent should be told of needed treatment, including all the information that would be required for a valid consent. The consent discussion should be documented in the patient chart and signed by the one who obtained the consent and countersigned by the listening third party. Then a follow-up letter should be sent to the parent/guardian that contains all the information related to the dental care and the parent’s response.
Some informed consent documents contain language that attempts to hold the provider harmless in the event the procedure does not go well. Such stated policies are called exculpatory terms and have been deemed invalid in many court cases. Burton Pollack, DDS, JD, discusses exculpatory statements in his book titled “Law and Risk Management in Dental Practice” (Quintessence, 2002) and gives the following example: “I accept this treatment with the understanding that I will hold the doctor harmless for any negligence in the performance of the treatment.” Pollack posits that while people are able to bargain away their rights in dealing with merchants, they cannot do so with health-care providers, as both parties are not in equal bargaining position. Expressed differently, the statement is actually saying, “Either you agree not to sue me should I be guilty of negligence and you are injured as a result of my negligence, or I will not provide the services you need.”
It is important to understand that a properly executed informed consent does not protect against claims of malpractice. If a patient feels she has been treated negligently, she must prove the four elements of malpractice, which are:
1. The duty of the health-care provider to provide competent care.
2. There was a breach of the duty to provide competent care.
3. An injury occurred.
4. Her injury was a direct result of breach of the standard of care (called proximate cause).
Courts have held that informed consent is irrelevant on the question of malpractice.
Informed refusal is a person’s right to refuse all or a portion of the proposed treatment after the recommended treatment, alternate treatment options, and the likely consequences of declining treatment have been explained in language the patient understands. A patient who refuses to follow the recommendations of the dental provider must be advised of the consequences of the refusal. This is a hot topic today, given the trying economic times that many are facing with loss of employment and benefits, including dental benefits. It is recommended to have a patient sign a “Refusal of Treatment” form if he or she declines the treatment recommendation (see Table 2). If a patient is referred to see a specialist and refuses the referral, the clinician should document the refusal thoroughly in the patient chart and have the patient sign the chart or a separate form.
Patients have many reasons for declining a recommended treatment, such as inconvenience, fear, denial, or inability to pay for services. If a disease condition is diagnosed and the patient refuses treatment, the doctor may decide to dismiss the patient from the practice. That is the doctor’s decision. Depending upon the circumstances, a doctor may not feel it is appropriate to dismiss the patient and may choose to provide alternate treatment (as opposed to ideal) for the short term. As long as the patient understands the ramifications of postponing treatment and the goals of alternate treatment, liability risks are minimized. Sometimes, however, the best option is patient dismissal. Thorough documentation cannot be overemphasized. Case decisions must be made on a patient-by-patient basis.
A case in point could be a patient with a broken tooth. The diagnosis is tooth fracture, and the doctor recommends restoration with a crown. After discussing the cost, the patient asks for other less costly options. An alternate treatment could be a large composite restoration for the short term. The patient is fully informed of the advantages, disadvantages, risks, and alternatives, and opts for the composite restoration. The patient made an informed decision. Two months later, the restoration fails. Is the doctor liable for malpractice? The answer is no, unless the patient can satisfy all four elements of malpractice.
Informed consent is a communication process, not necessarily a document. According to experts on malpractice litigation, keeping the lines of communication open with the patient is a vital component in avoiding lawsuits. Studies demonstrate that patients who believe they have been well informed regard
ing their condition and who have had their questions answered by members of the dental team are more compliant with treatment recommendations. All clinicians should view the informed consent process as an educational experience with the patient to discuss needed treatment advantages, disadvantages, risks, and alternatives, and ensure such discussions are well documented in the patient record. RDH
I understand that I have periodontal (gum and/or bone) disease. The disease process has been explained to me and I understand that it is caused by bacterial toxins (poisons) and my host response to these toxins. I realize that this disease may be painless and without symptoms, but that usually symptoms such as bleeding, swelling, or recession of gum tissue, loosened teeth, elongated teeth, bad breath, or sensitivity and soreness may be noticed. Treatment of periodontal disease may include periodontal scaling and root planing, either as a therapeutic procedure or preliminary to more extensive treatment.
Periodontal scaling and root planing involves the removal of calculus, bacterial plaque, bacterial toxins, diseased cementum (the outer covering of the root surface), and diseased tissue from the inner lining of the crevice surrounding the teeth. The purpose of this procedure is to reduce some of the causes of periodontal disease to a level more manageable by my individual immune system. I understand that my own efforts with home care are just as important as my professional treatment.
Consequences of doing nothing about my periodontal condition may be, but are not limited to:
I understand the recommended treatment, the risks of such treatment, and any alternative treatment and risks have been explained to me. I understand the fee(s) involved in the treatment as well as consequences of doing nothing.
I give permission for the use of local anesthetic and any anxiolytic and/or sedative medications that may become necessary. The possible side effects of local anesthetics are prolonged or permanent numbness of the lips, cheeks, or gums, rapid heart rate, allergic reactions, and reactions with other drugs that I am taking.
If there are any problems, contact the dental office immediately.
Patient Signature _______________________________ Date _________
Hygienist or Doctor Signature ______________________ Date __________
Witness Signature _____________________________ Date __________
Following is a sample form for the refusal of treatment for periodontal disease:
REFUSAL OF TREATMENT
Patient Name ___________________________________
A diagnosis of periodontal disease has been presented to me on this date. The disease process and possible ramifications for nontreatment have been explained to me, and I understand the consequences of not allowing this office to proceed with appropriate treatment.
Patient Signature _________________________________
Hygienist and/ or Doctor Signature ________________________________
DIANNE GLASSCOE WATTERSON, RDH, BS, MBA, is a professional speaker, writer, and consultant to dental practices across the United States. Dianne’s new book, “The Consummate Dental Hygienist: Solutions for Challenging Workplace Issues,” is now available on her website. To contact her for speaking or consulting, call (301) 874-5240 or email [email protected]. Visit her website at www.professionaldentalmgmt.com.
• CNA HealthPro Dental Professional Liability Risk Management Program. 2009.
• Glasscoe Watterson D. Documentation and Insurance Reporting of Periodontal Care. Foundations of Periodontics for the Dental Hygienist. Wolters-Kluwer Health: Lippincott Williams & Wilkins. 2011.
• Pollack B. Law and Risk Management in Dental Practice. Quintessence Publishing Co., Inc. 2002.
