The Standards for Informed Consent
The amount of informed consent does a dentist needs to obtain from a patient before beginning treatment has always been an important issue for every office to understand and have specific procedures on, because it is so integrally related to how much liability a dentist might face if the particular treatment goes wrong. No longer is a general informed consent form adequate to prevent a liability suit from including a count for not only malpractice, but lack of informed consent as to the procedure undertaken for the treatment which is alleged to be negligent. Those are the two counts which attorneys invariably include in most complaints for malpractice-negligence and lack of informed consent.
The Massachusetts Dental Regulations, as amended in 2010, show the recognition of the importance of not only having a general informed consent form signed, but also one for specific procedures. The Regulations require that patients or their legal representative give a dentist written general and specific informed consent prior to treatment. The general informed consent form usually covers basic preventive and some restorative procedures. Informed consent forms for specific dental procedures now must be obtained, including for administration of anesthesia, periodontal, endodontic, orthodontic, prosethetic and oral and maxillofacial procedures.
Informed consent involves not only the signing of a form, though, but an entire process of informing a patient of the risks of undertaking certain procedures as well as the benefits. It should be done verbally as well as in writing for the consent to be valid, particularly for more complicated treatment. Courts have upheld a patients’ right to damages because of lack of informed consent when the patient’s dental record does not show that the risks of the procedure were explained. The signing of a detailed form explaining all the risks and benefits of a particular procedure is important, and required legally, but explanations by the dentist verbally, and noted in the patient’s file, are of equal importance if the procedure is anything other than simple or routine treatment.
So what kind of informed consent procedure will shield the dentist from at least that separate cause of action in addition to any negligence or malpractice claim? The courts have made it clear that a patient must be given information about the patient’s condition, the nature and probability of the risks involved, the benefits to be reasonably expected, the inability of the dentist to predict results, the irreversibility of the procedure, the likely result of no treatment, and the available alternatives, including their risks and benefits. The rule adopted by courts requires dentists to disclose all significant information that a dentist in his or her specialty should possess that is material to an intelligent decision by the patient whether to undergo a particular procedure.
There is an important point that the dentist must keep in mind in what to tell a patient to obtain appropriate “informed” consent: the information is not what would be disclosed to other professionals necessarily, if the dentist feels that it would be unduly burdensome to the treatment of the patient. This is what is called the “privilege of nondisclosure” which creates a subjective standard which would give a dentist the decision making power as to how much information the patient needs to be given in order to make an “intelligent” decision about whether to go through with the particular treatment plan. To put it in simpler terms: will the explanation of remote risks scare the patient off from having treatment that the dentist feels is important?
A good percentage of the risks, even some of the remote ones, can be explained in a written document that will generally state risks of that type of oral surgery or dental procedure. But it is the dentist’s decision to explain the procedure verbally in terms so that the patient can make an intelligent decision about the risks and benefits of the treatment. For instance, how many times has your doctor read you all the fine print required to be enclosed in the information sheet accompany all prescription medication? The combination of the signed written consent form and a good discussion of the treatment plan with the patient is sufficient for a dentist to obtain appropriate informed consent to prevent increased liability.