Category Archives: Medicolegal Considerations

INFORMED CONSENT

INFORMED CONSENT

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 understarted the nature of the problem and have realistic expectations are less like to sue. second, properly presented and documented formed 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  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  he dentist 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, the 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  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 documented in the chart). Second, it may be harmful in some cases to provide all of the appropriate information 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   complication of during a surgical procedure. 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.

LEGAL CONCEPTS INFLUENCES LIABIALITY

LEGAL CONCEPTS INFLUENCES 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 havev that which all ordinarily skilled, educated: and experienced eritist would do under similar circumstances. Many states adhere to a national- standard for dental specialists. . 1a1practice occurs when the patient proves that the dentist failed to comply with this minimal level of care,which resulted in injury. In most malpractice cases the patient  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 evidence 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,  dentist is not  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  a bur or other instrument).  Recently several suits have charged the dentist with breach. uf contract. This charge has traditionally been applied 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 manv 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 communication or excessive salesmanship. Hestatute of limltations generally provides a time limit refiling a malpractice suit against a dentist: This limit.

however, varieswidely from state to state.  -the statute of limitations begins when an incident occur ” In other states the statute of limitations is extended for 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).

Medicolegal Considerations

CHAPTER OUTLINE

LEGAL CONCEPTS INFLUENCING .LlABILITY RISK REDUCTION
Patient lnfcrrnatlon and Office Communication INFORMED CONSENT
RECORDS AND DOCUMENTATION REFERRAL TO ANOTHER GENERAL DENTIST OR SPECIALIST COMPLICATIONS PATIENT MANAGEMENT PROBLEMS – Noncompliant Patient Patient Abandonment COMMON AREAS OF DENTAL LITIGATION WHEN A PATIENT THREATENS TO SUE MANAGED CARE ISSUES Telemedicine, Electronic Records, and the Internet SUMMARY

In recent years there has. been an increase in the number of malpractice claims brought against dentists. This trend has had a profound impact on several aspects of dentistry. Some of the most common lawsuits are related to extraction of the wrong tooth, failure to diagnose a problem, and lack of proper informed consent. The stress associated with the increased possibility of litigation influences the entire office. Malpractice insurance premiums are high, contributing to increased patient costs. Dentists feel pressured into practicing “defensive dentistry,” second-guessing sound clinical decisions based on concerns about potential litigation. The influence of litigation on dentistry has resulted in an effort by the profession to reduce the risk of legal liability by more closely examining treatment decisions” improved documentation, and better dentist-patient relationships. Reviewing all aspects of dental practice to provide the best possible patient care and to reduce unnecessary legal liability is termed risk ‘management. Although n9 substitute exists for sound clinical practice, non treatment lssue prompt many lawsuits. These,  often include miss communication and misunderstanding’ between the dentist and patient and poor record keeping, which in turn’ present opportunities for patient’s lawyers to criticize. This chapter reviews concepts of liability, risk management, methods of risk reduction, and actions that should be taken if a malpractice suit is filed.