Case Study: An Unaddressed Language Barrier

Repurposed from The Scope, Dental Edition, First Quarter, 2024

Facts of the Case

An 85-year-old-female presented to her MLMIC insured dentist’s office for an emergency visit due to complaints of pain at tooth #31. The dentist’s examination revealed swelling and mobility of that tooth. He initially prescribed antibiotics for the patient. He also noted in the patient’s record that English was her second language and that she primarily spoke and understood Italian.

The patient came back to the office 2 weeks later. The dentist removed the old crown on tooth #31 and performed a pulpotomy. He intended to complete root canal therapy at the next visit. There was no documentation in the dental record that the dentist engaged in an informed consent discussion with the patient to address the risks and benefits of, and alternatives to, the procedure that was contemplated.

Two weeks later, the patient returned to the office, and the tooth was extracted without complication. There was no other discussion documented in the patient’s dental record. The dentist did take a periapical film that showed that the inferior alveolar nerve was very close to the apices.

The patient presented back to the dentist’s office one week post-extraction, complaining of pain and numbness at the extraction site. The dentist prescribed antibiotics and promptly referred her to an oral surgeon. This was the last time the patient was seen at this dentist’s office.

The patient was seen by an oral surgeon, who confirmed paresthesia. His examination revealed diminished sensation to a cotton swab and dental explorer to the lower right side. He did not recommend any further treatment.

Lawsuit Filed

The patient commenced a suit alleging failure to refer her to an endodontist, failure to refer her to an oral surgeon for extraction, the negligent performance of an extraction resulting in both the loss of the tooth as well as a paresthesia and the failure to provide her with adequate informed consent.

With the assistance of an interpreter, the plaintiff testified at her deposition that she was unaware that an extraction was part of the treatment plan until after the procedure was completed. However, according to the insured dentist, the patient refused to undergo root canal therapy and opted instead for an extraction. There was no documentation of the patient’s refusal or her preference.

Expert Opinions

Our expert agreed that an allegation of lack of informed consent, especially from a patient with limited English proficiency, was problematic for the defense of this lawsuit. The expert also felt a pulpectomy would have been more appropriate rather than a pulpotomy in the face of a nonvital tooth. Due to the proximity of the apices to the nerve, a referral to an oral surgeon may have been warranted.

Although the insured was qualified as a general dentist to perform the extraction, given the proximity of the root to the nerve, a referral to an oral surgeon should have been considered. An appropriate referral to an oral surgeon was not made by the dentist until after the procedure when the patient complained of numbness. The dentist informed MLMIC that he does not use written informed consent forms and does not document any consent discussions. These failures significantly impacted the ability to successfully refute the patient’s allegations. The plaintiff’s demand was $450,000, and the case was ultimately settled.

Legal Analysis

Healthcare providers have an ethical and legal obligation to obtain informed consent prior to treating patients. It would be helpful for providers to implement and document the use of the teach-back technique during patient encounters to determine if patients have grasped the essence of consent discussions. Lack of any documentation of informed consent was a significant factor in the decision to settle this case.

The patient’s credibility was enhanced by the fact that she had limited English proficiency. It is essential that providers consider whether patients require language assistance from either bilingual staff, a telephone interpreter service or a volunteer or paid interpreter. Prior to treating the patient, the dentist did not address whether the patient comprehended information that was disclosed. Failure to obtain an interpreter to ensure that the patient understood conversations about the treatment plan and procedures performed undermined the defensibility of the case.

Whenever interpreter assistance is obtained, the interpreter, in addition to the patient and provider rendering treatment, should sign the consent form. Documentation of informed consent through the use of consent forms, progress notes, and, if necessary, interpreters, will all serve to counter a patient’s argument that “a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he had  been fully informed and that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought.”¹

It is important to emphasize that New York’s consent statute requires that it is “the person providing the professional treatment or diagnosis” who has the non-delegable duty to disclose information during the informed consent process “in a manner permitting the patient to make a knowledgeable evaluation.”² Conversations with patients should focus on the risks and adverse effects of treatment and alternative treatment options, and should be obtained for “a procedure which involved invasion or disruption of the integrity of the body.”³

After the settlement of this case, the dental practice realized the wisdom of implementing the use of consent forms. However, consent forms alone do not adequately suffice to avert or refute allegations of lack of informed consent. It is very common for patients to claim that they were simply given multiple forms to sign but did not read or comprehend them or discuss the content with the provider. Patients have been known to claim a total lack of recall of significant aspects of oral discussions or written materials or forms that were provided a day earlier. In addition to obtaining signed consent forms after discussions with patients, a crucial component to further substantiate the informed consent process is that the provider took the time to document the conversation in a progress note. A brief synopsis is all it takes to lend credibility to the fact that the provider and patient engaged in an informed consent discussion (e.g., “Discussed nature and purpose of the procedure with the patient, as well as risks, benefits, and alternatives, all questions were answered, patient provided consent.”).

Lack of informed consent often results in malpractice litigation. The outcome of this case highlights the importance of thorough communication with patients when obtaining informed consent and the necessity of documentation. Improvement of discussions to ensure that patients are better informed, as well as the use of consent forms and progress notes, will serve to protect dentists from claims of lack of informed consent or prove to be invaluable in the defense of malpractice lawsuits.

MLMIC policyholders can reach out to our healthcare attorneys for questions about treating patients with limited English proficiency, documentation, informed consent or other healthcare law inquiries by calling (877) 426-9555 Monday-Friday, 8 a.m.-6 p.m. or by email here.

Our 24/7 hotline is also available for urgent matters after hours at (877) 426-9555 or by emailing hotline@tmglawny.com.

Follow us on Facebook, Instagram, LinkedIn or Twitter to stay in the loop about the dental professional liability industry.

If you are not already a MLMIC insured, learn more about us here.

This document is for general purposes only and should not be construed as medical, dental or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical, dental or professional obligations, the applicable state or federal laws or other professional questions.

Sources:

1. PHL ss 2805-d(3)
2. PHL ss 2805-d(1)
3. PHL ss 2805-d(2)