Category Archives: Medicolegal Considerations

MANAGED CARE ISSUES

The influence of “managed health care hat changed many aspects of dentistry. This In the doctor-patient relationship and the way decislonsatil . made regarding which treatment alternatives are most appropriate. Dentists are often .placed in the middle of a  conflict between a desire to provide opti mal treatment and a health care plan’s, willingness to approve  approriate, ‘needed care. , Traditionally; the patient chose whether to elect a compromised treatment plan or even no treatment. Under managed care, however, some patients are being forced to accept compromised tr’eatment or no treatment, based on administrative decislons that may be driven more by cost containment pressures than sound dental judgment.
. In some cases a “gag provision” is included in a dentist’s contract with a managed care organization. This prevents the dentist from criticizing managed care organizations and sometimes prevents a dentist from presenting an alternative for care not covered by the third party
provider. This obviously creates a conflict between a  contractual agreement with the company and the ethical and
professional responsibility of the dentist to the patient. In 0some states this provision is illegal and unenforceable.  In 1995 the American Dental Association (ADA) Council on Ethics, Bylaws, and Judicial Affairs issued the following statement underscoring dentists’ obligation to provide appropriate care: Dentists who enter into managed care agreements may be
called upon to reconcile the demands placed on them to contain costs with the needs of their patients. Dentists must not ‘allow these demands to interfere with the • patient’s right to -select a treatment option based on
informed consent. Nor should dentists allow anything to interfere with the free exercise of their professional judgment or their dutyto make appropriate referrals if indicated. Dentists are reminded that contract obligations do not excuse them from their ethical duty to put the patient’s welfare first.2 Dentists may have a responsibility to advise patients
that a “comproised” treatment plan has been approved  by the managed care organization. The dentist should seek the patient’s’ consent to provide such treatment after the pertinent risks, complications, and limitations have been reviewed, along with an explanation of more optimal treatment options. Dentists should consider advising in written form both patients and third party payers of reasonably expected outcomes when the appropriate
treatment is not available because of improper decision  by third providers.

Telemedicine, Electronic Records, and the Internet.

Recent technologic developments have induced changes associated with medical and dental practices. The increasing popularity of computers and the Internet has given birth to new potential duties and liability concerns. Digital imaging and radiology, combined with the Internet capabilities for communication and even video conferencing, has created situations where patients may receive advise without the traditional doctor-patient interaction. The conversion to electronic rather than paper charts is a growing technology, with many potential applications for a modern dental practice. A dentist’S legal duty to a patient is currently linked to the existence of a doctor-patient relationship. Determind Ing whether this relatlonship exists, however, is no longer a simple task. The advent of internet marketing, telemedicine and other modes of providing information
or advice through an electronic media, without the direct ability to examine, diagnose, and recommend treatment, has clouded the issue of whether a- doctor-patient relationship (and a legal duty owed to a particular patient) exists. Courts in several states are beginning to make decisions that may provide some guidance. related to these evolving issues, although controversy, still exists. For example, a recent court decision has determined that a physician who consults with a treating physician over the
telephone owes no legal duty to the treating physician’s patient when treatment options were relayed during a telephone call.’ However, another court recently ruled that a doctor-patient relationship could be ‘implied when an on-call physician is consulted by telephone by an emergency department physician who relied upon the consulting physician’s. advice.”
Defining clear rules that can be relied upon by practicing dentists who provide direct or indirect advice over the telephone, Internet, or through web sites, will not be an easy task. Many questions remain unanswered. Do the laws of the state in which the patient lives or those in , which the dentist practices actually.control this issue? Is the dentist practicing dentistry in another state without a license? Is the advice offered by electronic means intended for general information and not intended to be relied upon by patients or the treating dentist for specific care? Will the electronictransfer of the information such as the patient’s chart or billing information violate state or federal privacy laws?’ Can the dentist protect the information from manipulation or misuse if sent electronically? Over the coming-years it, will be extremely important for practitioners to monitor trends in dental care as the Internet, information storage and transfer, and doctor patient relationships are affected by advancing technology. Current federal rules governing the electronic maintenance and transfer of records are provided in detail in the Healthcare Insurance Portability & Accountability Act
(HIPPA). SUMMARY In addition to providing sound technical care, the dentist

WHEN A PATIENT THREATENS TO SUE

Whenever a patient, the patient’s attorney, or any other representative of the patient informs the dentist that a malpractice suit is being considered, several precautions should be taken: First, all such threats should be documented and reported immediately to the malpracticEtinsurance carrier. The dentist should follow the advice of the malpractice carrier, institutional risk management team, or the attorney assigned to the case. These individuals will usually respond to the threat. Because the first indication of a. potential claim is usually a request for records, the
office should comply with state law regarding what must be provided (usually copies of care and treatment records, not the originals). Patients sometimes request the original chart and radio graphs for a variety of reasons. The law in many states indicates that the dental office owns the records and has a ‘legal obligation to maintain original records for a specified period. Patients are entitled to a legible copy, and dental offices are entitled to a reasonable reimbursement for the same. Patients do not own the records merely because they paid for care and treatment. Second, the dentist and staff should not discuss the case with the patient (or  representative of the patient) once a lawsuit is threatened or made. All requests for information or other contact should be forwarded to the
carrier or attorney representing-the dentist. All arguments with the patient or representative should be avoided. The dentist must not admit liability or fault or agree to waive fees. Any such statement or admission made to the
patient or patient’s representative may be used against the dentist later as an “admission against the dentist’s interest.” Third, it is Imperative that no additions, deletions, or changes of any sort. be made }n the patient’s dental
record. Jtecords must not be misplaced or destroyed. The clinician should seek legal advice before attempnng to darly. entry. DwjDg the process of malpractice litigation, dentists may ~ called to give a Q&.posi,tion This may be as the defendant in a case or as an expert witness. Although this Is quite common for attorneys,. the procedure is often . – unnerving and emotional for dentists, particularly when testifying in their own defense.’ . The  following are six suggestions that should be considered when giving a deposition related to a malpractice case: 1. The clinician should be prepared and have complete knowledge of the records. All chart entries,
test results, and any other relevant information should be reviewed. In complex cases, the clinician should consider reviewing textbook knowledge of the subject; however, an attorney should be consulted before anything other than the clinician’s own record is reviewed. 2. The clinician should never answer a question unless it is completely understood. The clinician should listen carefully to the question, provide a succinct answer to it, and ~top talking after the answer is given. A lawsuit cannot be won at a deposition, but it cari be lost. 3. The clinician should not speculate. If a review of the records, radiographs, or other information is necessary, the cltniciarrshould do so before answering a question, rather than guessing.
4. The clinician should be careful when agreeing that any ‘particular expert author or text is “authoritative.” Once such a statement is made, the clinician may be placed in a situation in which the clinician did something or disagreed with something the “expert” has written. In most states a clinician can be impeached by anything an author states, once the clinician agrees that the author is “authoritative.  The clinician should not argue unnecessarily with the other attorney. The clinician’s temper should not be shown (this  will only educate the clinician’s adversary as to what will upset the clinician in front of a jury, who will expect the dentist to act Professionally). – 6. The advice of the clini~ian’s lawyer should be followed. (Even if retained by the insurance company, the attorney is required to represent the clinician’s interests, not that of the insurance company or anyone else.) Most anx,iety related to lit.igation comes from the’ fear of the unknown. Most dental practitioners have limited or no exposure to  itigation. It must be kept in mind that. dentists prevail in most cases. Only about 10% of cases go to trial, and dentists win well over 80% of these cases. Unfortunately, a malpractice trial requires a tremendous investment of time, energy, and emotion, all of which detracts from patient care. Most dentists have no choice; they must defend themselves. Dentists who are repared . and who possess reasonable expectations of each step the litigation process usually experience less anxiety.

COMMON AREAS OF DENTAL LITIGATION  

Litigation has involved all aspects of dental practice and nearly every specific type of treatment. A few types of dental treatment have a higher incidence of legal action. Removal of the wrong tooth usually results from   communication breakdown between the general dentist, and oral surgeon or the patient and dentist. When in doubt the dentist must confirm the tooth to be extracted by radio graph, clinical examination, or discussion with the referring dentist. If opinions differ regarding the proposed treatment, the patient and the referring dentist should be notified and the outcome of any subsequent rsation documented. A short follow-up letter contirming the final decision may also be helpful in docu mentlng this decision. If the wrong tooth is in fact extracted, this should be handled in. the manner
described earlier in this chapter. Nerve injuries are often grounds for suits, with attorneys claiming that the nerve. injuries resulted from extractions; implants, endodontic treatment, or other procedures. These allegations are usually coupled with allegations of ipsufficient informed consent. Because nerve injuries are a known complication of mandibular extractions or mandibularimplants posterior to the mental foramen, patient advocates claim the patient had a right to accept these risks as part of treatment. If the dentist can visualize conditions that increase this risk, the patient should be advised and the condition documented. An example would be to  pecifically note the .elationship of the inferior alveolar nerve to the third molar tooth  to be extracted, when these appear to be in very close proximity. ‘ Failure to diagnose can be related to several areas of dentistry: One of the most common problems is a lesion that is seen on examination but is not adequately documented and no treatment or follow-up is instituted. If the
lesion causes further problems or a subsequent biopsy documents long-standing pathology or a malignancy, this may be viewed as negligence. This problem can be avoided by following up on any potentially abnormal
finding. The clinician should chart an initial diagnosis or. !leek a consultation from a specialist. If the lesion has resolved by the next visit, the  clinician should record that fact so the issue is closed. If the patient is referred to another doctor, the referring clinician should follow up
to documet the’ patient’s progress, including whether cr .not the patient’s condition was successfully  treated. Failure to diagnose periodontal .discase is often the area of criticism and legal action. A periodontal examination
should be a part of routine dental evaluations and therefore becomes the primary responsibility (If the general dentist. The status of the problem, suggestions for treatment, referrals, and progress or resolution of the
problem must be clearly documented,  Implant complications or failure b another c omrnon area of litigation. As with any procedure the patient
..should be informed of the compltcauon’s ..ssociated reconstruction and long-term outcome. TI)(‘ need for careful long-term hygtene and follow-up should be explained. The potential ‘detrimental ctfect (If patient habits such as smoking should be, explained and documented. Dentists placing implants should consider. using a customized consent form, summarizing common com- .plicatlons, and stressing the importance of patient follow-up care and oral hygiene, Failure to pre vide appropriate referral to another dentist
or specialist can be a source of legal problems. Dentists usually determine the appropriate time to refer a patient to a specialist for initial care or management of a complication. Failure to refer patients for complicated
treatment not routinely performed by the dentist -or delayed referral for management of a complication frequently becomes the basis for litigation. Referrals to specialists can greatly reduce liability risks. Specialists  re accustomed to treating more difficult cases and complications.
Specialists with whom the dentist has a good relationship can also .diffuse patient management problems by being objective and caring and by reassuring angry patients. ‘The general dentist and spedalist may discuss
ways of relieving the expense of addressing a complication and completing treatment. Temporomandibular joint (fMJ) disorders sometimes become more apparent after dental procedures duriring prolonged opening or manipulation, such as tooth extraction or endodontic treatment. It is important to document any preexisting condition in the pretreatment assessment. The risk of TMJ pain or other dysfunction as a result of a
procedure should be included in the informed consent when iridicated. If the patient is in dire need of care that may aggravate or cause a TMJ condition, a customized consent form should be drafted and signed. It should clearly define the problem, giving the .patient options and con confiing the patient’s authorization to proceed.

PATIENT MANAGEMENT PROBLEMS

Non compliant Patient

Dentists and staff should rout indy chart lack of cornpliance, Including missed appointments, cancellations, and failure to follow advice to take medications, seek consultations, wear appliances, or return for routine visits. Efforts to advise patients of risks associated with failing to follow instructions should also be. recorded. When the patient’s health may be jeopardized by continued noncompliance, the clinician should consider writing a letter to the patient, which identifies the potential harm and advises the patient that the office will not be responsible if these and other problems develop as a result of the patient’s noncompliance. If the patient’s care is eventually terminated, the accumulation of detailed chart entries documenting the noncompliance should justify why the dentist is unwilling to continue care.

Patient Abandonment

A legal duty is owed to the patient once a doctor-patient relationship is established. This occurs when a patient. has been accepted by the office, the initial evaluation has completed, and treatment has begun. The dentist is
uSUftlly obligated to provide care until the treatment is completed, ‘I here may be in-ranees. however. when it  impossible or unreasonable for a dentist to ‘cVlllplde a treatment plan because of several problems. Such problems include the patient’s failure to return for necessary appointments, follow explicit instructions, take medication, seek recommended consultations, and stop activities that may inhibit the treatment plan or otherwise [eopardlze the dentist’s ability to achieve acceptable results. This may include a ‘total breakdown of communication and loss of rapport between the dentist and patient. In these cases it is usually necessary for the dentist to follow certain steps before discontinuing treatment to avoid being accused of patient abandonment. First, the chart must document ·the activities leading to the patient’s termination, The patient should be adequately warned ,(if possible) that termination will result if the
undesired activity does not stop. The patient should he warned of the potential-harm that may result if such activity continues and the: reason why the harm may occur. After being told why the office is no longer willing
. to provide treatment, the patient should be given a real. son able opportunity to find a new dentist (30 to -15 days is common). The office should continue treatment durillg this period if the patient i~ in need of emergency care or care is required to avoid harm to the patient’s health
or to treatment progress.  When it has been decided that the dentist-patient relationshipcannot continue, the dentist must take the following steps to terminate the relationship A letter should be sent to the patient, indicating .the intent to withdraw from the case and the unwillingness to provide further treatment. It should include five important pieces of information:
1. The reasons supportin~ the decision t  discontinue treatment 2. If applicable, the potential harm caused by the patient (or parent’s) undesired activity 3. Past warnings by the office that did not alter the patient’s actions and continued to put the patient at risk (or jeopardized the dentist’s ability to achieve an acceptable result) 4. A warning that the patient’s treatment is not completed; therefore the patient should immediately seek another dentist or go to a hospital or teaching clinic in the area for immediate examination or consultation. (The clinician .should include a warning that if the patient fails to follow this advice, the patient’s dental health may continue to be jeopardized and any- treatment progress may be lost or
worse.) S. An offer to continue treating the- patient for a reasonable
period and for emergencies until the’ patient locates another dentist ‘This letter should be sent by certified mail to ensure and document that the patient did in fact receive it. If other dentists are treating the patient, the clinician should consider advising them of this decision. The clinician
should cosult local counsel if any cone confidentiality or a particularly sensitive reason decision exists. rhe-dentist Jl1U,t coi.unuv It) remain  vailable tor treatment of crncrgencv problems until till’ patient has had adequate time to seck treatme-nt Irom another dentist. This must be   in the letter outlined previously. . The dentist must offer to forward copies of all pcrtinent records that affect patient care. Nothing must he done to inhibit efforts of subsequent treatment to complete patient care. Patients ‘who are PLJ~ili\’l f(;; ,1-;. hu.nan imrnunodcficiency virus (HIV) or who (: Slill’ •.ir diseases cannot be terminated because of their disease, because this action
may violate the Hadicapped Civil Rights Act and other federal or state laws. The~l’ Jl”tk!lt~ cannot be refused treatment based 011 their disease. l’,llienh who  positive Of have- acquired  deficiency syndrome (AIDS) arc  onsidered halldi~”.1!’;’ ..’~1under these taws.’ Legal counsel should be  If the clinician  as another valid rea SOli to tt’lm:!’..ll’!” such d patient. Exceptions do exist to ‘ht..~l’~u,·~, ..<tcd guideline’S. Dell, tists must evaluate each situ;.\i.t11 I arcfullv. Occasions may occur when the dcnfist ll”L” not wish tl~lose contact
with a. patient or lose tilt; ability to observe and follow a complicatlon. Terminating treatment will often anger a patient, who may in turn seek legal advice if experiencing a complication. The office may elect to complete treatment in such cases. If treatment continues. the chart should carefully
reflect all warnings to the patient about potential harm and the increased chance that acceptable results may not be achieved. In certain cases the patient may be asked to sign a revised consent form that includes three important points: ‘ 1. The patient realizes that the patient has been noncompliant or has ot: .erwise not followed advice. 2. The previously mentioned activities either jeopardized the patient’s health nr the dentist’s ability to achieve acceptable results or have unreasonably increased the chances of complication. 3. The dentist will continue treatment hut make- no assurances that the results will be acceptable. Complications may occur requiring additional care. and the patient (or’ the patient’s legal guardian) will accept full responsibility It any of the above events occur and w~ll not hold the dentist responsible.

COMPLICATIONS

Less-than-desirable results can occur despite the dentist’s best efforts in diagnosis, treatment planning, and surgical technique. A poor result does not necessarily suggestthat a’ practitioner is guilty of negligence or other wrongdoing. However, when complications occur, it is mandatory that the dentist immediately begin to address the problem in an appropriate fashion. In most instances the dentist should advise the patient of the complication. Examples of such situations are loss of or failure to recover a root tip; breaking a dental instrument, such as an endodontic file, in a tooth  ferforation of the maxillary sinus; damage to adjacent teeth; or inadvertent fracture of surrounding bone. In these instances the dentist should dearly outline proposed management of the problem, including specific instructions to the patient further treatment that may be necessary, and referral to an oral and maxillofacial surgeon when appropriate . It is advisableto consider and discuss reasonable treat merit options that may still produce reasonable results. • For example, when teeth are extracted for orthodontic purposes, the first premolar may accidentally be extracted
when the orthodontist preferred extraction of the second premolar. Before removing any other teeth or alarming- the patient and parents, thedentist should call the orthodontist to discuss the effect on treatment outcome
and available t reatment modifications. The patient and parents shOlilct be notified that the wrong tooth was extracted but that the orthodontist indicated that the · treatment can proceed without significantly  compromising  the result The lack oi reasonable modifications of the original treatment plan is more’ challenging. The dentist may have to consider a more expensive plan, such as implants, and should also consider funding additional treatment. Another common complication is altered sensation following third molar removal. The chart should reflect the existence and extent of the problem. It may be useful to use a diagram to document the area involved. The density and severity of the deficit should be noted after testing, if possible. The chart should reflect the progress of
the condition each time the patient returns for follow-up. .Ultimately the patient may require a referral to an oral and maxillofacial surgeon with experience in diagnosing and treating nerve injuries. In most cases the referral · should occur within approximately 3 months after the injury it no significant improvement is seen. Excessive delays may limit the effectiveness ‘of future treatment, Documentation of the patient’s progress helps justify the decision to delay the referral.

REFERRAL TO ANOTHER GENERAL DENTIST OR SPECIALIST 

In many cases dentists may think that the recommended treatment is beyond their level of training or experience and may choose to refer a patient to another general dentist or specialist. A referral slip or letter. should clearlyindicate the basis for referral and what the specialist is being asked to do. The referral should be recorded in the chart. A written referral to a specialist may ask ·the specialist to provide a written report detailing the diagnosis and treatment plan A patient’s refusal to pursue a referral should be clearly noted in the chart. If a patient refuses to seek treatment
from a specialist, the dentist must decide whether the  recommended treatment is within the dentist’s own expertise. If not, the dentist should not provide this particular treatment, even if the patient insists. A patient’s refusal to seek care from a specialist does not reieve the dentist of liability for injuries or complications resulting from care outside the dentist’s level of training and expertise. ‘Dental specialists should carefully evaluate all referred patients. For example, extracting or treating the wrong tooth is a common allegation in court. When in doubt the specialist should contact the referring de~ntist and discuss the case. Any change in the treatment plan provided by the specialist should be documented in both the referring dentist and specialist’s charts. To avoid informed consent problems, the patient must approve any reveived plan or recommendation.

RECORDS AND DOCUMENTATION

Poor record keeping is one of the most common problems encountered in the defense of a malpractice suit. When. the quality of, patient care is questioned, the  records supposedly reflect what was done and why. Poor
records provide plaintiff attorneys with an opportunity to claim that patient care also must have been substandard. Even though a perfect record is neither possible nor required, records should reasonably reflect the diagnosis, treatment, consent, complications, and other key
events. Adequate documentation of the diagnosis and treatment is one of the most important aspects of patient care. A well-documented chart is the cornerstone of any risk management program. If dentists do not document fundamental clinical findings supporting the diagnosis and treatment, attorneys may question the need for treatment in the first place. Some argue that if an item is not charted, it did not happen. The following eleven items
are helpful when recorded in the chart:

1. Chief complaint
2. Dental history
3. Medical history
4. Current medication
S. Allergies
6. Clinical and radiographic findings and interpretations
7. Recommended treatment and other alternatives
8. Informed consent,
9. Therapy actually instituted
10. Recommended follow-up treatment
11. Referrals to other general dentists, specialists, or
other medical practitioners
Ten frequently overlooked pieces of information
should he recorded in the chart: .
1. Prescriptions and refills dispensed to.the patient
2. Messages or other discussions related specifically to
patient care (including phone calls)
3. Consultations obtained
4. Results of laboratory tests
S. Clinical observations of progress or outcome of
treatment
6. Recommended adjunct follow-up care
7. Appointments made or recommended
8. Postoperative instructions and orders given
9. Warnings to the patient, including issues related to
lack of compliance, failure to appear for appointments,
failure to obtain or take medication,
.instructions to see other dentists or physicians, orinstructions on participation in am’ activitv that
might jeopardize the patient’s health .’
10. Missed appointments
Corrections should be made by drawing a single line
through any information to be deleted. Correct information
can be inserted above or added below, along with a
contemporaneous date. The single-line ‘deletion should
be initialed and dated. No portion of the chart should be
discarded, obliterated, erased, or altered in any fashion.
In some states it is a felony to alter records with t

INFORMED CONSENT 

In addition to providing quality care, effective communication and good rapport should become a standard part of office management .objectives. Dentists can -be sued not only for negligent treatment but also for failing to
inform patients properly about the treatment to be rendered,
the reasonable alternatives, and the reasonable  benefits, risks, and complications of each. In fact, in some states, treatment without a proper informed consent is considered battery. The concept of informed consent is that the patient has a right to consider known risks and complications inherent to treatment. This enables the patient to make a
knowledgeable, voluntary decision whether to proceed  with recommended treatment or elect another option. If  a patient is properly advised of inherent risks anda complication. occurs in the absence of negligence, the dentist is not legally liable. However, a dentist can be held liable when an inherent risk occ.urs after the dentist fails to obtain the patient’s infotmed consent. The rationale for liability is that the patient was denied the opportunity to refuse treatment after being properly advised of risks associated with the treatment and reasonable options. . Current concepts of informed consent are based as much on providing the patient the necessary information as on actually obtaining a consent or signature for a procedure. In addition to fulfilling the· legal obligations, obtaining the proper informed consent from patients benefits the clinician in several ways: First, well-informed patients who understartd the nature of the problem and have realistic expectations are less likel to sue. second, a’
properly presented and documented formed consent often prevents frivolous claims ‘based on misunderstanding or unrealistic expectations. Finally, obtaining an informed consent offers the dentist the opportunity to
develop better rapport with the patient by demonstrating a greater personal interest in the patient’s well being. The requirements of an informed consent vary from state to state. Initially, informed consent was to inform patients that bodily harm or death may result from ‘a procedure.
It did not require discussion of minor, unlikely complications that seldom occur and infrequently result in ill effects. However, some states have currently adopted the concept of “material risk,” which requires dentists
to discuss all aspects material to the patient’s decision to undergo treatment! even if it is not customary in the profession to provide such information. A risk is material when a reasonable person is likely to attach significance to it in assessing whether to have the proposed therapy.
In many states dentists have a duty to obtain the’ patient’s consent; they cannot delegate the entire responsibility, Although staff can present the consent form, the dentist should review treatment recommendations,
options, and the risk, and benefits of each option;the dentist ~ust also be available to answer questions. Although not required by the standard of care in many states, it is advisable to get the patient’s written consent
for invasive dental procedures. Parents or guardians must sign for minors. Legal guardians must sign for individuals with mental or similar incapacities. Incertain regions of the country, it is helpful to have consent
forms written in other languages or have multilingual staff members available. Informed consent consists of three phases: (1) discussion,(2) written consent, and (3) documentation in the patient’s chart. When obtaining informed consent, clinician should conduct a frank discussion and provide information about seven areas: (1) specific problem, (2) proposed  treatment, (3) anticipated or common side effects, (4) possible complications and approximate frequency of occurrence, (5) anesthesia, (6) treatment alternatives, and (7) uncertainties about final outcome,
induding a statement that the treatment has no absolute guarantees.
This information must be presented so that the patient has no difficulty understanding it. A variety of video presentations are available describing dental and surgical procedures and the associated risks and benefits. These
can be used as part of the informed consent process but should not replace direct discussions between the dentist and patient. At the conclusion of the presentation, the patient should be given an opportunity to ask any additional questions. After these presentations or discussions, the patient
should sign a written informed consent. The written consent should summarize in easily understandable terms the items presented. Some states presume that if the information is not on the form, it was not discussed. It
should also be documented that the patient can read and speak English; if not, the presentation and written  sent should be given in the patient’s language. To ensure that the patient understands each specific paragraph of
the consent form, the dentist should consider having the patient initial each, paragraph on the form. An example of an informed consent document
appears’ in Appendix V. At the conclusion of the discussion, the patient, dentist, and at least one witness should sign the informed consent document. In the case of a minor; both the ‘patient and the parent or legal
guardian should sign the informed consent. In some states, minors may sign the informed consent for their own treatment if they are married or pregnant. Before assuming this to be the ‘case, local regulations should be
.verified. . The third and final phase of the informed consent procedure
is to document in’ the patient’s chart that an informed consent was obtained after the dentist discussed treatment options, risks, and benefits. The dentist should record the fact that consent discussions took place
. and should also record other events, such as videos shown, ·brochures given, and so on. The written consent form should be included.
Three special situations exist in which an informed consent may deviate from these guidelines: ‘First, a patient may-specifically ask not to be informed of all aspects of the treatment and complications (this must be
specifically docmented in the chart). Second, it may be harmful in some cases to provide all of the appropriate int.ormation to the patient. This is
termed the therapeutic privilege for not obtaining a complete informed consent. It is somewhat controversial and would rarely apply, to routine oral surgical and dental procedures. Third, a complete informed consent may not be necessary in an emergency, when the need to proceed with treatment is so urgent that unnecessary delays to obtain an informed consent may result in further harm to the patient. This also applies to inanagment of Mplications during a surgical procedure.  It is assumed that if failure to manage a condition immediately would result in further patient harm, then treatment should proceed without a specific informed consent.
Patients have the right to know if any risks are associated with their decision to reject certain forms of treatment. This informed refusal should be clearly documented in the chart, along with specific information informing . the patient of the risk and consequence of refusing treatment.
Patients who do not appear for needed treatment should be sent a letter warning of potential problems that may arise if they do not seek treatment. Copies of these letters should be kept in the patient’s chart.

RISK REDUCTION 

The foundation for all dental practice should be sound clinical procedures. However, properly.addressing other aspects of patient care and office policy may considerably reduce potential legal liability. These aspects include dentist patient and staff-patient communication, patient information, informed consent, proper documentation, and appropriate management of   complications. Additionally clinicians should note that patients with reasonable expectations and a favorable relationship with their dentist are less likely to sue and more likely to tolerate complications.

Patient Information and Office Communication

A solid dentist-patient relationship is key to any risk management pregrarn. Well-informed patients generally have a much better understanding of potential complications and more realistic expectations about treatment
outcomes. This can be accomplished by providing patients with as much information as possible 011 proposed treatment, alternatives and risks, and benefits and limitations of each. If done properly, the informed consent
process can’ improve rapport. Patients are given this information to help them better understand their care so they can make informed decisions: The information should be communicated in a positive manner and not
presented in a defensive way. Patients value and expect a discussion with their dentist about their care. Brochures and other types of informational
packages help provide patients with both general and specific information about general dental and oral surgical care. Patients requiring oral surgical procedures will benefit from information on the nature of their prob-‘
lern, recommended’ treatment .and alternatives, expectations, and possible complications. This information should have a well-organized format that is easily understood and is written in’ nonprofessional’s language. Informed consent is discussed in detail in the following section. When a dentist has a specific discussion. with a patient or gives a patient an informational package, it should be documented in the patient’s chart. Complications discussed  earlier can be reviewed if they occur later. In general,patients with reasonable expectations create fewer problems (a theme repeated throughout this chapter).

LEGAL CONCEPTS INFLUENCING LIABILITY

To understand the responsibility of the dentist in risk management, it is important to review several legal concepts pertaining to the practice of dentistry. Malpractice is generally defined as professional negligence.
Professional negligence occurs when treatment provided by the dentist fails to comply with “standards of ” care” exercised by other dentists in similar situations. In other words, professional negligence occurs when Professional In most states the standard of care is defined hv that
which all ordinarily skilled, educated: and experiencederitist would do under similar circumstances. Many states adhere to a national- standard for dental specialists. . 1a1practice occurs when the patient proves that the dentis failed to comply with this minimal level of care, ‘hich resulted in injury. In most malpractice cases the patient IlIU,t prove all of
the following four elements of a malpractice claim:’ (1) the applicable standard of care (legal duty), (2) breach of standard of (are, (3) injury, and (4) the breach caused the injury. The burden of proving malpractice lies with the plaintiff (patient). The patient must prove by a preponderance
of the evdence all four elements of till’ claim. First, there must be a professional relationship between the dentist and patient before a legal duty or obligation is owed to exercise appropriate care. This relationship can be
established if the dentist accepts the patient or otherwise begins treatment. Second, a breach or failure to provide treatment that satisfies the standard of care must be demonstrated. This standard of care does not obligate the
dentist to provide the highest level of treatment exercised by the most skilled dentist or that which is taught in dental school. The standard of care is iritended to be a “common denominator” defined by. what average practitioners would ordinarily do under similar circumstances. Third, it
must be shown that the failure to provide this standard of care was the cause of the patient’s injury, Fourth, there must have been some form of damage demonstrated. Dentists are not liable for inherent risks of treatment
that occur in the absence of negligence. For example, a dentist is not 1iable if a patient experiences a numb lip after a properly performed third molar extraction. This is a recognized complication. A dentist can be legally liable
for a numb lip if the patient proves it was caused by negligence (e.g., the numbness was caused by a careless incision, careless LIseof a bur; or other instrument). Recently several suits have charged the dentist with
breach. uf contract. This charge has traditionally beenapplied to business transactions and has not normally been used in disputes between ‘patients and dentists. However, some courts have recently ruled that a patient and dentist may actually have a contractual agreement to produce a specific result, and that failure to achieve this objective may result in a breach of contract. In many states ail alleged promise or guarantee asto the result i’s
not enforceable unless it is in writing. Overly aggressive marketing can lead to contractual liability. Marketing pressures sometimes lead to written advertiscrnents or promotions that can be interpreted as guaranteed
results. Patients who have difficulty chewing after delivery of new dentures, if originally promised that they  be able to eat any type of food without difficulty, might consider such promises breach of contract. Dissatisfaction
with esthetics or function. is often linked to unreasonable expectations, sometimes ‘fueled by ineffective comunication or excessive salesmanship.
Hestatute of limltations generally provides a time limit rifiling a malpractice suit against a dentist: This limt however, varieswidely from state to state.  -the statute of limitations begins when an incident occur ” In other states the statute of limitations is extended lor a short period after the alleged malpractice is discovered (or when a “reasonable” person would have discovered it). . Several other factors can extend the statute of limitations
in many states. These include children under 18 or the age of majority, fraudulent concealment of negligent treatment by the dentist or leaving a nontherapeutic foreign object in the body (e.g., broken bur or file).