Although state laws may vary on whether or not dentists are required to discuss material risks of treatment with their patients, dentists generally have an obligation to notify their patients of any known significant side effects associated with a treatment.
The legal concept of informed consent arises from the principle that, absent extenuating circumstances, a patient has the right to exercise control of his or her body by making an informed decision concerning whether to submit to a particular procedure or treatment.
Consequently, and as a general rule, if you recommend a particular course of treatment, you also have the duty to disclose to the patient all material risks involved in the procedure. Informed consent is simply a process in which the dentist communicates with the patient about the suggested treatment plan to be performed and the risks associated with the treatment(s). The patient then can make a truly informed and intelligent decision concerning his or her care.
Generally, informed consent requires the patient to fully appreciate:
- The nature of the treatment to be rendered
- All material risks associated with the treatment and the possibility that those risks will occur
- Alternative treatments available and their associated risks
- The risk of not being treated
It is within your discretion as to how to impart this information, although many states have specific informed consent laws that must be considered when making a decision.
Some dentists choose to use a printed form for the informed consent process. Others prefer to take detailed notes regarding the communication and the patient’s response, followed by a written acknowledgment by the patient. Either way, it’s important that you check with your state association, licensing board or your attorney about what may be the standard of care or what may be required in your state with respect to the doctrine of "informed consent."
Within the informed consent process, and again although laws vary from state to state, there are generally two different standards pertaining to informed consent. First, there is a "reasonable dentist" standard in which the dentist advises the patient of the risks a "reasonable dentist" feels are truly material or have a significant probability of occurring.
The second is the "reasonable patient" standard. This standard requires the dentist to provide information that a "reasonable patient" would want to know. In other words, a "reasonable patient" might want to know about even a miniscule risk, if an adverse outcome could be devastating or even fatal — although under similar circumstances a "reasonable dentist" might not discuss that risk with the patient because the risk of adverse consequences is not "material."
Many dentists have found that just as protecting the patient is the most important reason for obtaining malpractice insurance, it is also the primary reason for using an informed consent process. They frequently believe that the process results in better communication between dentists and patients, and it helps alleviate fear and apprehension commonly found with new patients. Many dentists and patients also think — and some courts agree — that it is the patient’s right to make decisions regarding their healthcare.
Another thing to remember about using an informed consent process is that the patient must be legally competent for the consent to be valid. Minors cannot consent, so a parent or legal guardian must provide the informed consent. Guardians will also need to consent on behalf of patients who are mentally incompetent. It’s often necessary to give special attention to patients with physical handicaps, such as deafness or blindness, because these conditions may affect your ability to communicate with these patients and their ability to communicate with you and your staff.
A well–crafted, well–documented informed consent process can protect the dentist as well. Although it is not a magical panacea that will prevent all malpractice suits, it will offer you one more layer of protection. Therefore, it is important that you discuss your informed consent obligations with your lawyer or state association.
Be sure to familiarize yourself with any administrative regulations or codes that the state or dental governing board of your jurisdiction may have issued. Many of these statutes/codes impose practice parameters of which you should be aware, such as documenting that exposure to radiation (i.e., x–ray exposure) is based upon clinical necessity, verifying the functional validity of your radiographic equipment, securing written consent of a parent/guardian for the treatment of his/her minor child, etc.
Certain states have deemed "unprofessional conduct" as grounds for professional discipline. Some examples of prohibited conduct are fairly obvious, such as substance abuse. Some are more obscure, such as employing a dental assistant who is not properly licensed. Certain state statutes/codes specify exactly what information must, at a minimum, be contained in the patient’s healthcare records, and the failure to do so may constitute unprofessional conduct. If your conduct and records do not address and satisfy these and other statutory and code requirements, you will obviously be subject to criticism by the dental expert who will inevitably be testifying against you. The failure to follow regulations or codes may give rise to a presumption of professional negligence, i.e., malpractice.