Informed Consent: The Good, the Questionable and how Jurors decide Consent Issues

Posted by Cathy Johnson In Business Insurance, Dental Practices, News
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Authored by Richard Small, J.D.

This article reviews key goals and considerations of the informed consent process, duties owed by dentists and patients, and how jurors assess informed consent claims.

Do I really have to get a patient’s informed consent in writing? Informed consent involves more than getting a signature on a form. It is critical that you establish an informed consent process that protects you, your patient and your practice, including additional forms for Covid-19 exposure.

Document the process

Documentation should summarize the process used by the office for advising patients about recommended treatment, available alternatives including no treatment and the benefits and risks of each.  The dentist’s answers to important questions relevant to treatment choices and the patient’s decision should be charted. Balancing the patient’s need for treatment with related risks should be documented when relevant.

The substance and process used to secure consent should provide the patient with enough information material to accepting treatment in light of inherent risks. Written consent forms and chart notes should adequately summarize the process and address increased risks (like a panorex showing the IAN transecting third molar roots) and duties patients are asked to satisfy (examples: getting a consult, second opinion, improve compliance, take medication, etc.).

Non-delegable duties

In most states, dentists owe a non-delegable duty to obtain consent after providing relevant, material information patients need, answering questions and ensuring consent forms are properly executed. Minnesota rules allow staff to address certain informed consent issues, but dentists should be involved in more important tasks such as answering questions and providing information material to the patient’s decision. Dentists must decide if they are willing to treat patients who insist on treatment the dentist considers unreasonable or unsafe. Chart notes are an important, valuable summary of details, discussions, risk assessment and decision making. These notes should supplement a well-designed informed consent form. This helps prove you acted reasonably.

Patient duties include selecting a treatment option and accepting risks inherent to care. Non-compliant patients might be required to improve compliance prior to treatment, appear for follow up, see specialists, etc. Drug holidays or stopping medications prescribed by others (bisphosphonates, blood thinners and getting INR levels, etc.) should include input from the prescribing provider. Whoever signs the consent form should have sufficient knowledge of the patient’s medical or dental co-morbidities and information important to treatment decisions.

Written informed consent forms

Written consent forms are highly recommended, even when not required by state law.  Properly designed forms standardize commonly known inherent risks by procedure. Properly executed consent forms can be invaluable at trial. They provide a clear summary of what the patient was told and accepted, giving the dentist credibility in the minds of jurors.

Charting key aspect of the process can avoid problems if judges do not let jurors see consent forms (this is rare but it can happen). Chart notes highlight key considerations and more unique situations such as increased risks patients should consider and jurors need to understand. This helps avoid a common argument, “If it isn’t written, it didn’t happen.”

Dentists can ask patients to review, initial and date important chart notes when consent forms are inadequate.  This confirms the patient’s awareness and acceptance of the plan. Well-designed videos can add clarity for patients (and jurors). Oral consent without documentation creates a he-said, she-said environment. This leaves dentists susceptible. Get it in writing.

Consent forms should be signed by a competent adult patient, a minor patient’s parent, an emancipated minor or legal guardian. Consider calling a parent if the legal status of the person signing for a minor or incapacitated person is unclear. A dentist can obtain a parent’s oral consent for treatment, or approval of a guardian over the phone (and chart it) in addition to a guardian’s written consent.

Negating informed consent

Dentists can negate protections associated with informed consent by delegating too much to staff or making misleading statements (there is a “one in a million” chance of this complication or it “never happened” in my office).  Informed consent protections can also be lost when patients prove negligence caused the injury (thus risks are no longer “inherent”).

Dealing with unreasonable patient choices

Dentists must decide whether to provide care or remain involved when patients insist on care likely to generate unacceptable results or unreasonable risks. Informed refusal forms are considered when patients reject proposed care or select an alternative likely to generate reasonable but not optimal results or come with reasonable but increased risks. Do not let a patient’s insistence on substandard care supersede the dentist’s professional judgment.

MN law on Minors

16 year-olds can consent to hospitalization, routine evaluations, emergency or short-term acute care in Minnesota. Emancipated minors can consent if they live separately from patents/legal guardians and manage their own finances.  When a minor’s health is in jeopardy, dentists can inform parents of treatment needed or provided. The head of a treatment facility can consent in emergencies if no qualified person is available to consent for an incompetent patient, and shall not be criminally or civilly liable.  When in doubt, seek help from local counsel. These rules can be tricky.

Jury considerations

Jurors sometimes ignore the court’s instruction not to make decisions based on sympathy. Lawyers recommend using written consent form and legible chart notes because they may enhance credibility. When cases go to trial, credibility matters.

Dentists should seek the advice of legal counsel licensed in their state when considering these issues. Companies like Fortress offer well-designed consent forms on their website. For a more thorough review of informed consent in conjunction with actual cases, please register to attend the MDA live webinar Informed Consent: The Good, the Questionable and why it is still Critically Important during COVID-19 on Tuesday, April 20 from 6:30-7:30 p.m.

If you have questions related to this article or your other insurance policies, please contact me.


About the Author

Richard Small, JD, Risk Management Consultant | Dental & OMS Practice | Dyste Williams
Richard Small, J.D., is a nationally recognized speaker on risk management in the dental practice environment.  Mr. Small practices law in Michigan and spent the first 20 years of his law practice defending dentists in court in Michigan and other states.

Richard Small, J.D. | Risk Management Consultant |952.843.4434|



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