A Conversation on Consent by Dr. Suzanne Gilman

Dentaltown Magazine

Overviews of state laws, malpractice considerations and a legal principle review

by Suzanne Gilman, DDS, FAGD, Esq.

Although dentists understand the importance of the informed consent conversation, some may have questions or be uncertain about their responsibilities and obligations. Every state has informed consent law, through case law, statutes, board of dentistry rules and regulations, or jury instructions—either alone or in combination. These laws dictate when, how and if dentists must fulfill their duty to obtain informed consent from a patient before performing dental procedures. This article will:

  • Explain basic legal principles of informed consent.
  • Discuss how informed consent and malpractice relate to each other.
  • Give a short overview of states’ informed consent law.

Basics of informed consent
The legal concept of informed consent in medicine was established in 1972, after a federal court decision. The patient may grant informed consent for a procedure only after the doctor has disclosed the risks of the procedure.

The patient may consent to the procedure after being made aware of:

  • The condition being treated.
  • The nature of the proposed treatment or surgical procedure.
  • The anticipated results.
  • The recognized possible alternative forms of treatment.
  • The recognized possible risks, complications and anticipated benefits involved in the treatment or surgical procedure, as well as the recognized possible alternative forms of treatment, including nontreatment.

Louisiana and Pennsylvania require the health care provider who is providing the service to be the one obtaining informed consent; it is a nondelegable obligation. If the dentist can produce an informed consent form that was signed by the patient and can testify that routine informed consent office protocol was followed for that patient, the court may accept the dentist did indeed validly obtain the patient’s informed consent.3–6

Unless specifically listed by a statute or regulation of your state, it may not be clear which procedures warrant informed consent. Because the standard in the community plays a role here, it may behoove the dentist to ask local colleagues which procedures they consider applicable.

The informed consent conversation will also help patients feel they are receiving more compassionate treatment.

During the conversation, patients must not be intimidated or be under medication that would cloud their judgment. They must be able to understand the language the doctor is speaking, and, if they lack the ability to understand the procedure and enter into an agreement, the dentist should discuss informed consent with a guardian.

Generally, before patients can prevail in a lawsuit against a dentist for lack of informed consent, they must prove that if they had known of the undisclosed risk, a reasonably prudent person in the patient’s position would not have undergone the procedure.7

Informed consent and malpractice
The word malpractice is actually an umbrella term for two types of negligence. The first type of negligence is operating below the standard of care by failing to obtain informed consent, in accordance with other professionals in the community.8 The second type occurs when the dentist operates below the standard of care by failing to diagnose or properly treat the patient.

This second type is our usual understanding of “malpractice.” The reality is that a dentist can be sued for malpractice for failure to obtain informed consent, for failing to diagnose or properly treat the patient, or both.

Consider this scenario: A patient presents with a nonrestorable #19. The dentist discusses extraction with placement of an immediate implant, but does not obtain informed consent. The patient is unaware of the risks of the procedure. Unfortunately, post-op, she develops a permanent paresthesia, perhaps due to swelling or compression of the nerve. A post-op CBCT scan shows the implant is not in or near the inferior alveolar nerve canal and no indication of negligent diagnosis or treatment exists. Yet, the patient may have a legitimate malpractice lawsuit, because the patient was harmed by an undisclosed risk.

While the two failures, lack of informed consent and poor diagnosis or treatment, come together under malpractice, it is important to understand where they split apart.

A dentist once told me that after the patient signs the informed consent form, she “doesn’t worry about anything.” The signed informed consent form does not give the dentist a pass to negligent care.

This is what happened in a dental malpractice case decided in Virginia in 2014, also concerning a paresthesia. The patient signed informed consent documents that described the risks and potential complications of the surgery before the removal of #16 and #17 by the oral maxillofacial surgeon.

Unfortunately, post-op, the patient suffered a perforated sinus and a permanent paresthesia. The patient claimed in his lawsuit that the oral surgeon fell below the standard of care in misdiagnosing and performing the surgery, and the jury returned a verdict for the patient.

The oral surgeon appealed, arguing that the court should have allowed the informed consent discussions to be introduced. The Supreme Court of Virginia confirmed the lower court’s decision to exclude the informed consent discussions. The rationale was that the oral surgeon could not use the patient’s awareness of the risks of the extractions as a defense for deviating from the standard of care in misdiagnosing the condition or negligently performing the surgery.9

The patient, after understanding the risks, can agree to the procedure. What they are not agreeing to is the procedure being done negligently.

X-Rays and Informed Refusal
We have all encountered the patient who seeks treatment, but refuses X-rays.

Some dentists may ask the patient to sign an informed refusal form, a contract in which the patient voluntarily agrees either to release the dentist from their duty of care, or to not sue the dentist for injuries resulting from negligent care.10

If the patient later develops a serious problem and sues, the court might dismiss the case if the agreement is enforceable. The problem is, the wording of the form must be so clear that the patient unambiguously understood to what they were agreeing. A patient may not have fully appreciated or understood, for example, the presence and effect of bone loss or an odontogenic tumor, progressing silently and undetected under a nonradiographic oral exam.

Most dentists will choose not to treat a patient without X-rays because that is below the standard of care. Traditionally, courts have stated that patients cannot waive the duty of a health care provider to provide nonnegligent care, and providers cannot contract to “get out” of their liability for negligence. Furthermore, dentists maintain their privilege of licensure by adhering to the duty of care, which will supersede that type of contractual obligation.11

Individual state laws
Often while presiding over a lawsuit, the court will refer to relevant case law of that state. These are laws handed down from courts that decided previous, similar cases. Case law is relevant in informed consent lawsuits; from it come standards that are used to decide if the doctor properly disclosed the risks to the patient.

In a “reasonable physician” state, the jury will evaluate the expert’s testimony as to whether the disclosures were what a reasonable doctor would have made under similar circumstances. That might be “friendly” to the dentist/defendant. Some states that follow the reasonable physician standard are Illinois, Missouri, Montana, Ohio, Indiana, Colorado and Wyoming.11–18

In a “reasonable patient” state, the jury will consider if the doctor disclosed all the risks a reasonable patient would consider material and need to know to make his or her decision. That might be patient/plaintiff-“friendly” because the jury will be able to identify with what a reasonable patient would do. Some states that follow the reasonable patient standard are California, South Dakota, Washington, Alaska, Rhode Island, Mississippi, Oklahoma, Vermont and Connecticut.19–27 New Mexico follows the “objective standard,” where the extent of disclosure required is based on the knowledge or skill of an ordinary patient or physician.28

South Carolina, New Jersey, Minnesota, Maryland, Idaho, Arkansas, Florida, Kentucky, Massachusetts, Wisconsin, New York, North Carolina and Texas have statutes or laws handed down by the legislature and/or boards of dentistry that require dentists to obtain informed consent and/or to retain documentation in the patient’s records.29–41

The state of Georgia is unique in that no statutory or regulatory informed consent requirement exists for dentists. A Georgia statute lists procedures for which physicians must obtain informed consent, but dental procedures are not on the list.42

Nevada, Washington, D.C., North Dakota, Utah, Oregon, Tennessee, New Hampshire, Alabama, Kansas, West Virginia, Arizona, Delaware and North Carolina have laws that require dentists to obtain informed consent for certain treatments. These treatments concern: prescribing opioids, removal of serviceable amalgam restorations in nonallergic patients, obstructive sleep apnea, pediatric and special-needs protective stabilization, enteral/nitrous oxide/oxygen inhalation sedation, treatment provided in mobile dental units, and telehealth.43–48

Becoming cognizant of your state’s informed consent law can help you to craft a clear and organized informed consent protocol for your office. It may reduce some of the uncertainty that leads to stress, and perhaps keep you out of trouble. Best wishes for a rewarding and fruitful practice!

[Author’s note: This article covers general legal concepts regarding informed consent; however, it should not be construed as legal advice. Readers are encouraged to seek the advice of an attorney who is licensed in their state, and who can advise them according to their specific situations.]

1. Canterbury v. Spence, 464 F.2d 772.
2. Barcai v. Betwee, 50 P.3d 946, 98 Haw. 470 (Haw., 2002).
3. Shinal v. Toms, 162 A.3d 429 (Pa., 2017).
4. LA Rev Stat § 40:1299.131(D).
5. Chapter 21: Maine Health Security Act Subchapter 5: §2905(2).
6. Graham v. Kelly (Iowa App., 2012).
7. Curran v. Buser, 271 Neb. 562 (Neb., 2006).
8. Michigan SJI 30.01.
9. Fiorucci v. Chinn, 288 Va. 444 (2014).
10. Nadia N. Sawicki, Choosing Medical Malpractice, 93
Washington Law Review 891, 915 (2018).
11. Id. at 913-925.
12. Weekly v. Solomon, 156 Ill. App. 3d 1011 (1987).
13. Wilkerson v. Mid-America Cardiology, 908 S.W.2d 691, 696 (Mo.App.1995).
14. Collins v. Itoh, 160 Mont. 461 (1972).
15. Turner v. Children’s Hosp., 76 Ohio App.3d 541, 554-555 (1991).
16. Culbertson v. Mernitz, 602 N.E.2d 98, 100 (Ind.1992).
17. Gorab v. Zook, 943 P.2d 423, 427 (Colo.1997).
18. Havens v. Hoffman, 902 P.2d 219 (Wyo. 1995).
19. Truman v. Thomas, Cal.Rptr. 308, 611 P.2d 902, 905 (1980).
20. Wheeldon v. Madison, 374 N.W.2d 367, 374 (S.D. 1985).
21. Backlund v. Univ. of Washington, 137 Wash.2d 651 (1999).
22. Korman v. Mallin, 858 P.2d 1145, 1149 (Alaska 1993).
23. Wilkinson v. Vesey, 110 R.I. 606 (1972).
24. Hudson v. Parvin, 582 So.2d 403, 410 (Miss.1991).
25. Smith v. Karen S. Reisig, M.D., Inc., 1984 OK 56.
26. Small v. Gifford Mem. Hosp., 133 Vt. 552.
27. Downs v. Trias, 306 Conn. (Conn., 2012).
28. Gerety v. Demers, 92 N.M. 396, 410-411 (1978).
29. South Carolina State Board Section 40-15-450 (B).
30. N.J.A.C. 13:30-8.7 Patient Records (a) (4).
31. Minnesota Administrative Rules 3100.9600; Subp.9.
32. Maryland-234 CMR: Bd. of Registration in Dentistry, 5.14.
33. Idaho State Bd. of Dentistry IDAPA 19 Rule 41.
34. Ark.Stat. § 16-114-206(b)(1).
35. Fla. Statute 766.103(3)(a)(2).
36. Kentucky KRS 304.40–320.
37. Mass. 234 CMR: Bd.of Registration in Dentistry 5.14:(f)(1).
38. Wisconsin State Legislature: Chapter DE 14, 14.03.
39. New York Public Health Law § 2805-d.
40. North Carolina Gen. Statute § 90-21.13.
41. State Bd. of Dental Examiners, Texas, TITLE 22. Examining Boards Part 5. State Bd.of Dental Examiners Rules and Regulations Chapter 108.
42. Blotner v. Doreika, 285 Ga. 481; OCGA § 31-9-6.1(a).
43. Nevada AB 474 Section 5
44. District of Columbia Municipal Regulations for Dentistry 4213.45; North Dakota Board of Dental Examiners, Mercury-free Dentistry.
45. Utah State Board of Dentistry 58-69-801: Oregon Administrative Rule 818-035-0072 (2)(a).
46. New Hampshire RSA 317-A:12 and RSA 317-A:20; Alabama Dental Practice Act Article 4, § 34-9-82; Kansas Dental Board, 71-5-10 (4).
47. West Virginia Bd. of Dentistry, Series 14 Mobile Dental Facilities & Portable Dental Units, 7.1- 7.4; AZ Rev Stat § 32-1299.25 (2015).
48. Delaware 1100 Bd. of Dentistry, 13.5

Author Bio
Author Suzanne Gilman, DDS, FAGD, Esq., is a licensed dentist in New Jersey and a licensed attorney in New Jersey and Minnesota. Gilman graduated from New York University College of Dentistry and Rutgers–Newark School of Law. A former dental associate, she was the owner of her solo practice for seven years. Gilman is a member of the Tri-County component of the New Jersey Dental Association. Within Tri-County, she has served as vice president, newsletter editor and the chair of Peer Review. She also taught dental radiography to dental assistants and was an associate professor at the School of Health Professions of the University of Medicine and Dentistry of New Jersey. Email: suzannegilman@me.com

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