One of the contributing factors that often leads to dental malpractice litigation is the failure to obtain adequate informed consent from a dental patient. Frequently, a dentist may fail to discuss the material risks and benefits of, and the alternatives to, the proposed treatment, including no treatment at all. Unfortunately, when a discussion about informed consent does not take place, the record is completely silent on the subject. This failure will buttress a patient’s argument that there was a lack of informed consent.
Failure to document the informed consent discussion, the clinical findings and the rationale for the proposed treatment often results in a successful allegation by a patient’s attorney that an informed consent discussion did not occur.
The Informed Consent Process
Effective communication between dentists and patients is vital to generate and maintain a healthy professional relationship, and informed consent discussions are essential to afford dental patients an opportunity to reflect on their options based on meaningful information provided to them by their dentist. Merely having a patient sign a consent form does not substantiate that informed consent was obtained. It is the conversation the dentist has with the patient and the patient’s agreement to go forward with the care plan, that is truly the informed consent.
Generally, an informed consent discussion must include the type of procedure, the reason for the procedure, the anesthesia anticipated, and the risks and benefits of, and alternatives to, the procedure, including the option and risks of not undergoing the recommended treatment. The proposed treatment plan should be discussed with the patient throughout the course of care. The patient must be continuously educated to ensure that they comprehend and agree with the contemplated procedure(s). Should the patient’s dental or medical condition change during the course of care, the dentist should consider whether a new informed consent discussion, factoring those changes to the patient’s status, needs to be had with the patient.
The proposed treatment plan should be discussed with the patient throughout the course of care.
The dentist should strongly consider using an interpreter if English is not the patient’s primary language or if the patient has a hearing deficit. When using an interpreter, that individual should also sign the consent form, indicating their role as interpreter. Documentation in the progress notes should reflect the interpreter’s name and involvement during all informed consent conversations.
Good documentation not only confirms good patient care but often prevents litigation or assists in the defense of a dental malpractice lawsuit. The documentation should consist of the informed consent discussion, including the patient’s assessment, the contemplated procedure(s), that all the patient’s questions were answered, and that the patient provided informed consent. Any other pertinent communications that the dentist had with the patient about the procedure should also be documented. Stating in the documentation that the patient fully understood the conversation leading up to the provision of the patient’s informed consent to the procedure or treatment is crucial. Perhaps the most important part of documentation is that the patient fully understands the treatment plan. It is also advisable to document necessary referrals before the treatment plan is instituted, especially if the patient seems uncomfortable with recommendations that were made.
Full disclosure of anticipated costs in advance of treatment will prevent the patient from being unreasonably surprised by out-of-pocket expenses.
Whether the patient went forward with all referrals should also be documented in the record. In addition, it is important to inform the patient that any complications that may develop during the course of treatment will be appropriately addressed by the dentist.
Signed Documents Are Not Sufficient
Good documentation of the consent discussion with the patient should always include a discussion of the risks of noncompliance with the dentist’s advice. It is important that the patient be provided with oral as well as written instructions for the procedure so that faulty or unrealistic expectations for the outcome of care can be eliminated. This, in turn, lends credibility to the dentist’s fulfillment of the informed consent obligations.
It is crucial that the informed consent conversations with patients be well documented in the dental progress notes, especially before initiating an invasive procedure. Signed consent forms must be made part of the patient’s dental record. Completed consent forms should be maintained in paper records or scanned into the EMR. Additionally, any reports from referral care should be added to the patient’s record.
Signed consent forms must be made part of the patient’s dental record.
Patients often commence a dental malpractice lawsuit based upon inadequate informed consent when there are serious damages such as nerve impairment with symptoms of burning, numbness or pain. Thus, appropriate verbal communication with patients, along with documentation of the risks of the procedure and any anticipated follow-up care, will be helpful to defend against allegations of lack of informed consent. The written informed consent form, which must be signed and dated by the patient before the procedure, should justify the dental therapy. Minor patients who are less than 18 years of age or who are unemancipated or otherwise lack capacity to consent, must have the consent form signed by a custodial parent, a legal guardian, or another representative who is able to provide informed consent under New York State law.
Ramifications of Poor or Missing Documentation
Unfortunately, not only is the lack of informed consent often a basis for an allegation in dental malpractice lawsuits, but unhappy patients are also apt to complain to the Office of Professional Discipline (OPD), the New York State dental disciplinary agency. The patient may also place unfavorable reviews on social media websites about a dentist’s abilities. Thus, there can be a triple negative effect from poor care and an unhappy patient. In fact, dissatisfied patients often seek opinions from other dentists, who then may voice condemnation of the prior dentist’s treatment. This often results in malpractice litigation, as well as reports to OPD and scathing online reviews.
The patient may also place unfavorable reviews on social media websites about a dentist’s abilities.
If a patient sustains nerve damage, neuralgia, an infection, or the need for costly and extensive corrective dentistry, substantial damages can result in a significant indemnity payment of several hundred thousand dollars as well as exorbitant legal defense costs and expenses. However, if the dental record is well documented that the patient was fully informed about and agreed to the potential for the development of a risk that did, in fact, affect the patient, the dentist is more likely to prevail should the allegations focus on lack of informed consent.
Additional Informed Consent Components
An integral aspect of the informed consent process should be to screen the patient for any unusual risk factors before performing a procedure. This includes consideration of whether the contemplated procedure requires prior consultations from, or referrals to, specialists. Communicating these considerations to patients should be a component of ongoing informed consent discussions. It is important to listen carefully to the patient during informed consent dialogs and to provide the patient ample opportunity to ask questions before obtaining the patient’s consent to a very complex procedure. Consideration must also be given to any history of general noncompliance and/or gaps in dental care of great length so that discussions with patients include the necessity of strict cooperation with the treatment plan.
Remain attentive to red flags that require intervention with the patient before a problem develops.
Further, as part of the informed consent discussion, dentists should include an explanation of the billing requirements and whether procedures are covered under the patient’s insurance policy. Full disclosure of anticipated costs in advance of treatment will prevent the patient from being unreasonably surprised by out-of-pocket expenses. Such issues often lead to patient dissatisfaction and result in the patient questioning whether consenting to the procedure was a mistake. In fact, it can create an inference that the dentist did not obtain a true informed consent.
Unfortunately, when patients are incapable of accepting adverse treatment outcomes despite providing consent, they may contact their insurance company to withhold payment to the dental provider. Detailed documentation of the informed consent discussion will greatly assist dentists in payment-related disputes, along with the defense of malpractice lawsuits or OPD investigations that include allegations of lack of informed consent. In the absence of adequate documentation of informed consent, patients are afforded an opportunity to escalate the value of cases presented to their insurer or an attorney, especially when there is an allegation of irreversible damage.
Preventative Measures for Dentists
There are several ways to mitigate an insurance complaint or lawsuit based upon lack of informed consent. Remain attentive to red flags that require intervention with the patient before a problem develops. Do not make promises that may be unrealistic and that cannot be kept. Strong professional relationships are built on trust. That trust can be established through good communication. When patients recognize through informed consent discussions that dentists made a concerted effort to meet or manage their expectations, they are more likely to comply with established dental plans and provide consent to the proposed treatment. By thoroughly communicating and properly obtaining informed consent for various invasive procedures, controversy can be avoided.
Strong professional relationships are built on trust.
If Nothing Else, Read This Paragraph
It is crucial that patients are kept in the loop with informed consent discussions, as well as documents, so that they not only remain well informed but will provide educated consent to recommended treatment plans. The informed consent process should be utilized throughout the course of the patient’s treatment as an effective tool to assist in achieving these goals. Time spent on engaging in frequent conversations to obtain informed consent and generating detailed documentation on the provision of consent will undoubtedly contribute to building positive dentist-patient relationships. It will also provide invaluable proof should dental malpractice litigation include allegations that informed consent for dental treatment was not obtained. Strict adherence to engaging in and carefully documenting informed consent conversations with patients is sage advice that should lessen the risk of lawsuits for dentists.
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