The November JADA article by Dr. Daniel Orr II and William Curtis, "Obtaining Written Informed Consent for the Administration of Local Anesthetic in Dentistry" (
JADA 2005;136:1568–71
), is exactly the kind of information that, in the telling, makes it so—a self-fulfilling prophecy.
It is sort of an advertisement to lawyers on how to go about suing dentists. And since the warning about written informed consent is now published in JADA, it increases the credibility of it needing to be done or, at least, provides one more increment of credibility for the concept to be introduced in court. The article appears to be written by a lawyer [Dr. Orr has a law degree, as well as a DDS, a PhD and an MD] for lawyers.
The conclusion, as quoted from the article, is "based on the results of our informal survey." The conclusion reads, "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."
What does that mean? Why, based on the article, would I perhaps want to consider obtaining written informed consent? Will it benefit me, my practice or my patients? Nothing in the article suggested it would, except the implied threat that I will be asked by a lawyer why I don’t have a written informed consent, if my patient ever has an untoward response to dental treatment, if a local anesthetic was used. (If an untoward response to dental treatment occurred and a local anesthetic was not used, I would still get sued, but the question of written informed consent for the local wouldn’t come up.)
But would getting written informed consent change the outcome of the suit, or is it just one more way for a lawyer to make it appear that my dental practice wasn’t up to the standard of care? Especially now, since an article was published in JADA suggesting that I "may want to consider getting a written informed consent."
I live in California. Currently, I have to get patients to sign a state government-mandated acknowledgment that I have given them a dental materials fact sheet. Essentially, this document tells patients that there is silver and mercury in their silver fillings, quartz and binders in their composite fillings, gold in their gold crowns, etc. Soon we will all have to sign an acknowledgment that there is gas in the gas pumps at filling stations.
At some point, a person who comes to a dentist to get dental work done knows that the use of a local anesthetic will be necessary for some dental procedures. They also know that, as with any medical or dental procedure, untoward things can happen. They shouldn’t be required to sign a form that acknowledges that.
Next, I will have to meet my new patients at the bottom of the stairs to my office and inform them that the office is at the top of the stairs, and that there is a risk that they may fall while climbing the stairs to the office or that they may have a heart attack. All of that is true, but there is no benefit or value to them in a signed informed consent. Actually, in the back of my mind, I can hear my liability insurance carrier’s lawyers saying, "Hey! The stair informed consent thing is a great idea."
Also, in California, as I understand it, if the risk of a side effect to a medication is less than 3 percent, then the patient doesn’t have to be informed. That is common sense. A patient doesn’t need to be burdened with information about something that is unlikely to happen. I suspect that problems associated with local anesthetic administration are less than 1 percent and, therefore, common sense, compassion for not burdening the patient and an extrapolation of the law would suggest that there is no benefit to me, my patient (the person I am most concerned about) or my office to have them sign a written informed consent.
Though doing so may, in some small way, protect me from being made to look clueless by some lawyer intent on impugning my character, implying that my not having done so suggests that my dental practice is not up to the standard of care.
