Informed consent may be obtained orally and may be proved by "habit" testimony (that is, oral consent is the practitioner’s habit and always is obtained). However, oral informed consent does not provide a patient’s signature for the record. Establishing valid oral consent during litigation may be more difficult than establishing valid written consent.

	LEGAL BACKGROUND

TOP ABSTRACT LEGAL BACKGROUND INFORMED CONSENT SURVEY OF DENTISTS RESULTS DISCUSSION CONCLUSION REFERENCES

 
The frequency with which a service is provided within the profession is one of several means by which a reasonable or ordinary treatment protocol is established. Patients expect to receive reasonable treatment from competent practitioners licensed to provide that service. A general practitioner who provides services to patients may be held to the same standards that a specialist would be held to if the specialist had provided the services.^2–4 One generally is considered reasonable if one acts as a health care professional ordinarily would act in the same or similar circumstances.

Simple negligence occurs when one owes a duty to another and breaches that duty (that is, does not act as a reasonable person would act in the same or similar circumstances). Malpractice (or tort negligence related to professionals) occurs when duty and the breach of duty are compounded by the elements of causation and damage.

For malpractice to exist, the elements of duty, breach of duty, causation and damage must exist. The absence of any one of these four elements requires that the defendant health care professional be found innocent of any claim.

Since the 18th century, English common law, supported by subsequent American judicial decisions, has required surgeons to obtain a patient’s simple consent for surgical procedures.^5,6 From 1957 to the present, legal decisions have indicated that once a duty attaches, informed consent is a legally required component of most treatment plans to one degree or another.⁷

	INFORMED CONSENT

TOP ABSTRACT LEGAL BACKGROUND INFORMED CONSENT SURVEY OF DENTISTS RESULTS DISCUSSION CONCLUSION REFERENCES

 
In dentistry, written informed consent usually is obtained for anesthesia involving sedation or general anesthesia, as it is for many other procedures. Since the original Stanford University case⁷ that established the doctrine of informed consent (as opposed to simple consent), courts nationwide have found that patients have a right to be informed about the risks and benefits of these procedures. However, statutes governing informed consent vary from state to state, and practitioners need to be familiar with their own state law (see sidebar on page 1571).

Practitioners generally advise patients about both minor common complications and serious rare complications that can occur with the proposed procedures; in doing so, they cover both extremes of the spectrum of potential complications. In relatively infrequent situations, health care professionals are not required to obtain informed consent, such as during emergency procedures, in Good Samaritan situations, secondary to a valid waiver, with an application of the extension doctrine (which allows a health care professional to extend treatment beyond that originally contemplated, such as modifying a cavity preparation from an inlay to an onlay) or in cases involving therapeutic privilege (which allows practitioners to withhold some discussion of consent if the practitioner believes that the patient would be adversely affected by that aspect of the discussion).

The existence or lack of written informed consent can have significant implications if a malpractice action is considered after treatment is rendered.

The existence or lack of written informed consent can have significant implications if a malpractice action is considered after treatment is rendered. If a treatment-related complication (damage) occurs, a review of the written informed consent often reveals that the potential complication was expressly discussed and the risk associated with that complication was accepted by the patient. In other words, a valid informed consent indicates that the patient and health care professional agreed that the potential benefits of the procedure in question outweighed the potential risks of experiencing damage. Secondary to such a written informed consent, many malpractice actions are truncated early in the legal proceedings.

On the other hand, if a common or serious complication occurs and informed consent was not obtained in writing, the health care professional may be placed in the difficult position of convincing a jury that written informed consent was not necessary. Defendant practitioners may be at odds with plaintiffs’ experts who opine that written informed consent was obviously necessary and frequently is obtained by others in the profession.

	SURVEY OF DENTISTS

TOP ABSTRACT LEGAL BACKGROUND INFORMED CONSENT SURVEY OF DENTISTS RESULTS DISCUSSION CONCLUSION REFERENCES

 
Our initial evaluation of this topic was based on responses to an informal survey distributed to 252 dentists attending the winter 2004 American Dental Society of Anesthesiology meeting in Las Vegas. One of us (W.C.) randomly distributed this survey to approximately one-half of the attendees at the meeting. The questionnaire asked the dentist if he or she was a general practitioner or specialist, and, if the latter, then what type of specialty. Also included were dentists who responded that they limited their services to anesthesiology for dentistry. The questionnaire then asked practitioners if they obtained written informed consent for the administration of local anesthetic.

The table shows the survey findings.

	RESULTS

TOP ABSTRACT LEGAL BACKGROUND INFORMED CONSENT SURVEY OF DENTISTS RESULTS DISCUSSION CONCLUSION REFERENCES

It appears that general dentists who perform general dentistry frequently do not obtain written informed consent for the administration of local anesthetic. We need to emphasize, however, that our survey was informal and a different format might yield different results.

	DISCUSSION

TOP ABSTRACT LEGAL BACKGROUND INFORMED CONSENT SURVEY OF DENTISTS RESULTS DISCUSSION CONCLUSION REFERENCES

 
Although local anesthesia is extremely safe and predictable from a statistical standpoint, the potential complications from the administration of local anesthetic—including topical application and nontraditional methods such as periodontal ligament or intraosseous techniques—are myriad.^8–10 In addition, at times local anesthetic is not administered solely to facilitate treatment, but is the treatment itself, such as in the treatment of patients with facial pain. Local anesthetic also can be used for differential diagnoses, such as in determining the source of pain. However, a health care professional ordinarily is not obligated to enumerate each and every complication that might occur secondary to a proposed treatment, only common and serious complications.

Common complications. Some of the more common complications that may occur secondary to the administration of local anesthetic in dentistry include algesthesis, tumescence and ecchymosis. For informed-consent purposes, a health care professional wishing to advise patients of these complications would list pain, swelling and bruising on the form, because the complications must be explained in terms a patient would reasonably be expected to understand.

Rare complications. Some of the rare, but more serious, complications that have been reported as a result of administering local anesthetic include permanent trigeminal nerve functional changes (such as permanent anesthesia or paresthesia^11,12) and life-threatening reactions.^8,13 For informed-consent purposes, the dentist can list these sequelae as permanent numbness or abnormal sensation, as well as death.

An example of a complication that likely would not be listed on the informed-consent form is transient amaurosis, which is rare but—though often disconcerting—generally not serious, because the blindness usually resolves within hours.^14–16

Effective written informed consent may include, along with the listing of potential complications, the phrase "including but not limited to" to indicate that other complications are possible but not listed. Finally, the practitioner can include as a standard feature on the consent form a sentence indicating that the patient understands the provisions of informed consent as described and has no further questions.

	CONCLUSION

TOP ABSTRACT LEGAL BACKGROUND INFORMED CONSENT SURVEY OF DENTISTS RESULTS DISCUSSION CONCLUSION REFERENCES

 
Based on the results of our informal survey, it appears that written informed consent for the administration of local anesthetic more often than not is secured by specialists and dentists limiting their practices to anesthesiology for dentistry. General dentists do not obtain written informed consent as often as do specialists. However, all dentists may want to consider whether it would be beneficial to their patients and their practices to obtain written informed consent when administering local anesthetic.