As every dentist knows, it is a good risk management practice to discuss the risks and benefits of a proposed treatment plan with a patient before starting treatment. In many cases, the dentist has a corresponding legal obligation to obtain informed consent from the patient before beginning treatment.
Dentists should ensure that they are familiar with and in compliance with the informed consent laws in their states.
This article reviews the historical development of informed consent law in the United States. It also highlights factors dentists must consider when making decisions on obtaining valid informed consent from patients.
 |
ROOTS OF INFORMED CONSENT
|
|---|
The legal requirement for health care providers to obtain informed consent from patients has its roots in the principle that competent adults have the right to decide what procedures may be performed on their bodies. As early as 1914, this basic right was asserted by a New York state court, which stated, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault."1 As this decision indicates, doctors who perform certain procedures on patients without their consent could be found guilty of battery.
The doctrine of informed consent evolved in the 1960s to incorporate the concept that a patient could not give meaningful consent to treatment unless he or she had been adequately informed of the risks involved and any available alternatives. Courts generally required health care practitioners to disclose information that a reasonable practitioner would have revealed under similar circumstances.
Then, in 1972, in the landmark case of Canterbury v. Spence, the U.S. Court of Appeals for the D.C. Circuit announced a new standard for informed consent disclosures.2 The Canterbury court placed great importance on the "patient’s right of self-determination," and held that physicians must disclose all risks that potentially could affect a patient’s decision about a course of treatment. The court imposed some limits on this standard, saying that physicians should not be expected to discuss remote risks that a patient generally would not need to consider in making an informed decision, and that physicians were not obligated to disclose risks that would be known by the average person or risks of which the patient was already aware.
Since the Canterbury decision, case law and statutes governing informed consent have continued to evolve in the states. At present, the states are split almost evenly on the question of whether the "reasonable professional" or "reasonable patient" standard should govern disclosures required to obtain informed consent. In Wyoming, for example, case law has established that physicians and dentists must disclose risks that a reasonable medical practitioner in similar circumstances would reveal.3 In contrast, in Georgia, which in 2000 was the last state to adopt an informed consent requirement, physicians and dentists must disclose risks that a reasonable person in the patient’s position would have considered significant in deciding whether or not to undergo proposed treatment.4
In some states, elements of the "reasonable professional" and "reasonable patient" standards come into play in determining whether a health professional will be held liable for violating informed consent requirements. In Illinois, for example, physicians must disclose the risks of proposed treatment and possible alternatives that a reasonable medical practitioner would reveal under the same circumstances.5 However, for a patient to establish damages resulting from the failure of a physician to obtain adequate informed consent, the patient must show that had the physician disclosed sufficient information, a reasonable person in the patient’s position would have refused the proposed treatment.
In some states, elements of the ‘reasonable professional’ and ‘reasonable patient’ standards come into play in determining whether a health professional will be held liable for violating informed consent requirements.
A review of the law around the country shows that some cases that set the standard for informed consent in a particular state stemmed from disputes involving health professionals other than dentists. However, even if informed consent cases in a particular state refer primarily to physicians or other nondental professionals, dentists still would be well-advised to follow the guidelines established by those cases. The standards set out in those cases most likely will be binding on dentists, as indicated in a recent ruling from the Supreme Court of North Dakota. The North Dakota court found that the law pertaining to a physician’s duty to obtain informed consent also applied to dentists.6
As noted earlier, informed consent requirements vary from state to state. This article is intended as an overview of law related to informed consent, and dentists should consult with their personal attorneys to ensure that they are complying with applicable informed consent requirements in their states.
|
KNOWING YOUR STATE’S REQUIREMENTS
|
|---|
In particular, dentists should determine whether they are legally obliged to obtain informed consent before providing any treatment or only before performing certain procedures. Thus, dentists would be prudent to investigate whether the law in their states requires them to obtain informed consent for all procedures or only for surgical or invasive procedures. In Pennsylvania, for example, an appellate court held that endodontic treatment constituted a surgical or operative procedure requiring informed consent.7 Under Pennsylvania law, informed consent is not necessary for nonsurgical procedures.8 In contrast, the Supreme Court of New Jersey has held that informed consent is required in that state for noninvasive procedures.9
Dentists should be aware that in some states, laws or regulations might require dentists to obtain informed consent under some or all circumstances, in addition to any informed consent obligations created by case law in that state. More than 15 states obligate dentists to obtain informed consent before placing patients under anesthesia, and a few states require dentists to obtain informed consent before providing any treatment or before performing surgery.
|
DISCLOSING PERSONAL TRAITS
|
|---|
Another issue is whether dentists must disclose personal characteristics that arguably could be relevant to the treatment that dentist is to provide. In a case related to informed consent, the Supreme Court of Georgia held that a patient could not sue a physician for fraud on the grounds that the physician had failed to disclose that he was using cocaine at the time he was treating the patient.10,11 The Georgia court also found that the physician’s failure to provide this information did not negate the patient’s consent to treatment, and thus the patient did not have a basis for a battery claim.
Similarly, the Pennsylvania Supreme Court has held that evidence of a physician’s personal characteristics and experience is not relevant to an informed consent claim.12 In so doing, the Pennsylvania court found that a plaintiff could not sue a physician for failing to obtain informed consent on the grounds that the physician misrepresented the number of times he had performed a certain surgical procedure, although the court noted that under these circumstances the plaintiff might have basis for a misrepresentation suit.
In contrast, a Louisiana appellate court held that a surgeon violated the informed consent doctrine by failing to disclose his chronic alcohol abuse, since his condition created a material risk associated with his ability to perform the surgery, which, if disclosed, would have obliged the patient to elect another course of treatment.13 Similarly, the Supreme Court of New Jersey has held that a "serious misrepresentation" of professional experience by a physician could affect the validity of a consent obtained by that physician.14 Many courts that have considered this issue have concluded that health professionals are not required to disclose personal traits to obtain informed consent. However, the Louisiana and New Jersey cases reinforce the importance of consulting legal counsel for advice on compliance with the law in a particular state.
A dentist should be prepared to handle situations in which informed consent must be obtained from a person other than the patient.
|
SECURING INFORMED REFUSAL
|
|---|
When seeking to obtain informed consent from a patient for a proposed treatment plan, the dentist may have to handle the patient’s decision not to proceed with the treatment under discussion. Particularly if the treatment has been recommended by the dentist as dentally necessary, the dentist will want to secure an informed refusal from the patient. In such a case, the dentist would be wise to ensure that the patient understands the possible consequences of refusing treatment. While there is limited case law that addresses a health care practitioner’s obligation to obtain informed refusal, this concept has been discussed by the courts,15 and it would be prudent for dentists to review the consequences of refusing recommended treatment with their patients.
|
PROTOCOL FOR MINORS, ADULTS UNABLE TO CONSENT
|
|---|
A dentist also should be prepared to handle situations in which informed consent must be obtained from a person other than the patient. These circumstances will arise with minor patients and with adult patients who are not legally competent to make informed decisions about their own treatment. In all such cases, the question of how informed consent must be obtained will be governed by state law, and dentists should consult their state dental associations and personal attorneys for guidance.
In the case of minor patients, the parent or legal guardian generally may give informed consent on the child’s behalf. If the child’s parents are unmarried or separated, the dentist should take special care to ensure that he or she is obtaining informed consent from the appropriate person, as determined by state law.16 If the patient is an adult who is legally incompetent to provide informed consent, such issues, again, will be governed by state law.17
If the patient has a legal guardian, the dentist should ask for a copy of the court order appointing the guardian and inspect the order to ensure that the guardian is authorized to consent to dental treatment on behalf of the patient. For example, a guardian may have been authorized to handle the ward’s financial affairs, but may not have been empowered to make health care decisions for that person.
There are other means for transferring authority to make health care decisions from a legally incompetent person to another individual, such as health care powers of attorney and laws permitting decisions to be made by surrogates under some circumstances. Such laws vary from state to state, and dentists are reminded to consult their lawyers for guidance.
The discussion of obtaining informed consent on behalf of patients unable to give consent leads to another important factor dentists should consider when securing informed consent: The patient giving consent must have the capacity to make an informed decision. In practical terms, this means that even if an adult patient is considered legally competent to make health care decisions for himself or herself, if that patient is not capable of making an informed decision at the time consent is sought, any consent obtained under these circumstances may be found invalid.
For example, if a patient is intoxicated or even under the influence of prescription medication that affects his or her judgment, that person likely lacks the capacity to give informed consent at that time. A dentist who is dealing with a patient under these circumstances would be well-advised to reschedule the patient for another appointment, during which proposed treatment can be discussed again, rather than attempt to proceed with treatment after obtaining consent that may be invalid.
Other factors may be relevant as well. For instance, the Oregon Supreme Court has held that evidence of a sexual relationship between a physician and a patient could be relevant to the patient’s claim that the physician failed to obtain her informed consent to surgery.18
There are limited circumstances under which dentists will not be required to obtain informed consent before providing treatment; in an emergency, for example, the patient may be incapable of giving consent. Also, there is a limited "therapeutic" exception to the informed consent requirement, which would apply if a dentist determines that a patient could be harmed by receiving the information that typically would be disclosed to obtain an informed consent.
Even if a dentist is not mandated by the laws of his or her state to obtain written informed consents, it still is advisable for the dentist to do so.
|
RISKS OF DELEGATING INFORMED CONSENT DUTY TO STAFF
|
|---|
Dentists also should consider whether they will personally obtain informed consent from patients in cases where this is required, or whether they will delegate this responsibility to another person. Some courts have held that staff in a health professional’s office who have been trained to discuss informed consent may handle that task.19,20 However, dentists should keep in mind that ultimately they will be responsible for the informed consents obtained by staff members. If a dentist chooses to delegate this task, he or she should ensure that staff members are well-trained in securing informed consent, and that the dentist is available to answer any patient questions.
|
WRITTEN VERSUS VOCAL CONSENT
|
|---|
Another question frequently raised by dentists is whether informed consents must be obtained in writing. Some states have statutes or regulations requiring dentists to secure written informed consent from patients. Even if a dentist is not mandated by the laws of his or her state to obtain written informed consents, it still is advisable for the dentist to do so. Should the patient later claim that he or she did not give informed consent to treatment provided by the dentist, it will be very helpful for the dentist to produce a form signed by the patient that thoroughly explains the risks of, benefits of and possible alternatives to the treatment at issue.
It has been held that the existence of a signed consent form gives rise to a presumption that the patient consented to treatment, in the absence of misrepresentation, inadequate disclosure, forgery or the patient’s lack of capacity.21 On the other hand, it also has been held that securing a signature on a preprinted consent form may not be sufficient to allow a patient to make an informed choice about treatment, particularly in situations in which the patient may be unable to fully understand the written information on the consent form.22
Thus, the most prudent approach is for dentists to present patients with a written consent form, and then orally discuss relevant risks of, benefits of and alternatives to treatment, and answer any patient questions, before asking the patient to sign the form. If the patient’s understanding of English is limited or if the patient has other communication difficulties, it would be wise for the dentist to use an interpreter to explain the proposed treatment to the patient. Not only is this the safest course for obtaining informed consent, but this practice also will ensure that a dentist dealing with hearing-impaired patients meets his or her obligations under the Americans with Disabilities Act.23,24
|
THE ADA CODE OF ETHICS
|
|---|
Moreover, dentists who are ADA members should keep in mind their ethical obligation to respect patients’ rights to self-determination. Section 1.A. of the ADA’s Code of Professional Conduct states that dentists should inform patients of proposed treatment and any reasonable alternatives in a manner that allows the patient to become involved in the treatment decision. Consequently, even if a dentist is not legally required to obtain informed consent for a particular procedure under the law of the dentist’s state, the ADA-member dentist always should take care to explain a proposed treatment plan in a manner that is understandable to the patient.
|
MALPRACTICE SUITS
|
|---|
Finally, dentists should remember that obtaining informed consent from patients does not them from any malpractice suits that patients might file. Even if informed consent was obtained properly, the dentist still will be responsible for providing dental services according to the applicable standard of care, and could be subject to liability for malpractice if he or she fails to do so.
|
CONCLUSION
|
|---|
This article has highlighted the legal, ethical and practical considerations a dentist should keep in mind when discussing proposed treatment with patients. As was emphasized throughout the article, legal obligations for obtaining informed consent vary from state to state, and may be governed by statutes, regulations and case law. Dentists should consult their own attorneys for advice on complying with the legal requirements for informed consent in their states.
TOP
ABSTRACT
ROOTS OF INFORMED CONSENT
