What does a dentist’s duty to inform really mean? By: James A. Clark, JD, MBA
CEO of IMTEC Corporation

Consent to medical treatment, to be effective and legal, should stem from an understanding about the proposed treatment and a decision by the patient based on adequate information. The dentist must furnish that information in a non-technical manner. The patient must be told about available alternatives and their material risks, if any. This requirement, commonly known as “informed consent,” is, from the law’s standpoint, as essential as a doctor’s care and skill in the actual performance of the agreed-to procedure. The importance of a good informed consent procedure for every dentist is therefore, readily apparent. In some cases, it’s absolutely critical.

For instance, a recent court case in the Midwest illustrates an important legal principle for dentists. The facts in the case were as follows: A patient brought a lawsuit against a dentist claiming the dentist was negligent in the patient’s treatment during a tooth extraction. The patient claimed the dentist negligently diagnosed and treated her and inadequately informed her of necessary information from which she could have given an informed consent to the agreed-to dental procedures. The gist of the claim was that during the extraction procedure the patient’s bone was fractured and she had not been properly informed of that particular risk.

After the suit was filed by the patient against the dentist, the doctor’s attorney presented a statement from a medical expert stating that in the expert’s professional opinion, fracture of a dental patient’s bone during tooth extraction is a rare occurrence which can happen in the absence of any negligence on the part of the doctor. The patient’s attorney was unable to challenge that opinion, and the trial judge entered an Order dismissing the case before a jury was allowed to consider it. This proceeding, referred to as a summary ruling or adjudication, is becoming quite common in civil courts. In this case, the patient appealed the judge’s ruling to an appeals court.

After reviewing the record, the higher court upheld the trial judge’s decision, making the following ruling:
a. Defendant dentist presented competent medical evidence that bone can be unintentionally removed during tooth extraction without any negligence on the part of the dentist, and the patient did not challenge that critical contention.
b. The patient’s claim that she was not adequately informed of the extraction procedure’s risks failed, because the dentist was only required to inform her of “material risks.”

Analysis And Recommendations To Dentists
As a general rule, informed consent laws require a doctor to inform his patient of options and the associated risks of each. If the doctor fails to do so, then the doctor can be held responsible for the consequences. Some states require the doctor to go further by outlining his or her professional opinion of the likely results if the recommended procedure is not followed. The doctor must also clearly inform the patient of treatment alternatives. Risks of each course of action, including risks in not having any treatment at all, should be included. If the patient gives no consent, the law generally defines the medical or dental procedure as a potential battery, which can be quite serious for the doctor involved.

There is no need for a dentist to disclose risks that either ought to be known by everyone or are already known by the particular patient. However, what about disclosures that might alarm or upset an apprehensive patient? In view of the doctor’s primary obligation to do what is best for the patient, if full and complete disclosure would likely be detrimental to the patient’s total care and best interest, the clinician may reasonably withhold such disclosure. If that happens, the doctor should fully explain the potential consequences to a close family member of the patient while making detailed entries in the patient’s chart. Dentists should keep in mind that a doctor should decide not to disclose risks to a patient only after a thorough review of the case and the patient’s overall condition. If this happens, there’s always a chance the doctor will be “second-guessed” later on down the road.

Dentists should also be familiar with certain situations where disclosure is not required. The upset or apprehensive patient example is one, and another is where there is an emergency and the patient is in no condition to determine whether treatment is required. The doctor should keep in mind, however, that if no disclosure is made and a legal claim is later brought, then the dentist must be prepared to explain to a judge or jury his or her actions.

From a legal standpoint, a claim, based on lack of informed consent, consists of three elements: the duty to inform the patient being the first, the second is proof of what caused the patient’s problem, and the third is the patient’s injury. What caused the problem requires proof the patient would have chosen no treatment or a different course of treatment had the doctor adequately explained the alternatives and material risks of each. If it develops that the patient would have chosen to proceed with the treatment even if he had been duly informed of its risks, the element of what caused the problem is missing and there’s no case and no liability. In other words, a direct connection exists between the dentist not disclosing information and the patient’s injury only when disclosure of material risks would have resulted in the patient’s decision against it.

A hypothetical case of a smoker’s dental implant failure will illustrate the point. The disgruntled patient visits a lawyer and states “…if Dr. Smith had told me I had to stop smoking cigarettes, I would have saved my money on implants and kept my dentures.” To evaluate the claim, the lawyer routinely contacts the dentist’s office and requests the patient’s chart. Upon review, if the doctor’s chart reflects that he verbally told the patient cigarette smoking could result in the implants failing, the dentist is likely in a good position and the lawyer will probably decline the retainer. However, if the dentist encloses a signed informed consent form that includes a written warning to the patient of the same risk, then there is no liability to the dentist and no case.

For example, when IMTEC Corporation launched its Sendax MDI mini-dental implant product in early 1998, the company decided it would be beneficial to dentists if an informed consent form unique to the MDI was made available as a part of the training. With the caveat that IMTEC was not offering up legal advice, many of the forms have been distributed across the country. Since laws vary from jurisdiction to jurisdiction, IMTEC strongly recommends doctors verify with their legal counsel that the form is sufficient under local law. In addition to the normal risks of an MDI procedure, IMTEC’s form goes further in describing the effects of tobacco use, consent to photograph the patient’s mouth, etc. That signed form, with a simultaneous entry in the chart of what the doctor told the patient and the fact the dentist gave the patient a signed copy, will invariably settle any consent issue that might arise.

A District of Columbia judge in a landmark case once stated what is required to satisfy the informed consent requirement:
“That means generally informing the patient in non-technical terms as to what is at stake: the therapy alternatives open to him, the goals expected to be achieved, and the risks that may ensue from particular treatment and no treatment”.

The judge went on to state, so informing the patient hardly taxes the doctor, and “…it must be the exceptional patient who cannot comprehend such an explanation at least in a rough way.”

So, what is a “material risk”? Generally speaking, a risk is material information if it would likely affect the patient’s decision to undergo the procedure or not. If an injured patient claims he wasn’t informed of a particular risk that occurred, and there’s no proof the doctor informed the patient of that risk, then there is a case, and a jury will decide damages. That scenario can be avoided by taking the following elementary, and prudent steps:

1. Take the time to develop an informed consent form.

2. Be sure the form describes material risks of each procedure, keeping in mind the definition of “material” included in this article.

3. Avoid using technical, medical terms in the form. (Recall what the D.C. judge said will satisfy the informed consent requirement.)

4. Be sure that the doctor handles the informed consent procedure, not a dental assistant. (This is simply good bedside manner; the patient wants to hear about what might happen from the doctor, not an assistant.)

5. Take a moment to note in the chart what you told the patient, and the patient’s response. Be clear and thorough. What you write in the chart in those few minutes may turn out to be critical later on.

6. Be sure a staff member witnesses the informed consent form being signed by the patient and then signs his/her name. Follow-up by giving the patient a signed copy of the form.

7. If an emergency exists, or if a patient is extremely upset and the dentist believes no disclosure should be made, the dentist should make appropriate entries in the patient’s chart of the nondisclosure, and the basis and justification for the decision.

8. Avoid the temptation to alter patient charts in any fashion after you’ve been notified of a claim. The accuracy and integrity of your charts will be critical to a defense against a claim. If the charts have been altered or changed in any fashion after notice of the claim, then your credibility will be severely damaged.

9. Be sure staff members are aware of your consent procedure, and emphasize to each employee that the informed consent procedure, in the eyes of the law, is just as important as the procedure itself.

For more information about informed consent where you practice contact a lawyer experienced in dental/medical cases, your local dental association or dental board.

James Clark is a licensed attorney and has been CEO of IMTEC Corporation since 1997 and a director of the company since 1991. The author acknowledges the input and assistance of Drs. Ronald A. Bulard, Charles E. English and Raymond Choi in preparing this article. Mr. Clark may be contacted at 580/223-4456 or via e-mail at james@imtec.com.