The legal doctrine of informed consent relates to the information that should be given to a patient prior to the patient being deemed sufficiently informed to make a legally valid decision about dental treatment. Both patients and practicing dentists often misunderstand the concept.
Some dentists believe that if a patient refuses or declines dental radiographs but “signs off” on that refusal, the dentist is protected from any adverse consequences because he or she has the patient's consent. In fact, the dentist is at risk. Indeed, if a dentist determines that radiographs are necessary in a specific situation (ie, required by the applicable standard of care), a patient cannot legally consent to deviating from the standard of care and receiving substandard care. The courts have generally concluded that such purported consent is against public policy, as it would ostensibly provide legal protection to dentists for rendering substandard treatment and thereby potentially encourage such care, in addition to potentially put dental consumers at risk. Similarly, a patient cannot provide legally valid consent to a dentist placing crowns on periodontally involved teeth because, again, such would be a legal nullity and sanction substandard dental treatment. These are only 2 of many examples of what occurs in the dental office, and neither scenario constitutes an informed consent by the patient. A dentist confronting such a patient would be wise to decline treating, or to terminate, the dentist-patient relationship.
A dentist has the legal obligation to inform the patient of any proposed dental treatment, including any treatment options, and the foreseeable risks associated with that treatment. For example, the extraction of an impacted third molar should include the foreseeable risks associated with such an extraction, in addition to the option of nonextraction and its attendant risks. If a patient opts for no treatment after affirmative treatment options and his or her risks have been explained, the patient assumes the risks for the deterioration of his or her dental condition and other potential adverse consequences. But in such a scenario the dentist is not rendering dental care that is below the standard of care.
Although there is generally no legal obligation to provide a patient with written treatment options and attendant risks, it is wise to do so. A written document can provide evidence both that the patient was given accurate and sufficient information relative to the treatment options and attendant risks and that the patient expressly selected a particular treatment option after reviewing all the information. Although such a written document does not in and of itself preclude a later claim alleging lack of informed consent, it certainly presents a significant degree of legal protection to the dental practitioner. Patients sometimes claim, especially after an adverse occurrence or less-than-ideal result, that they were not given information about the risks of treatment or the potential for a less-than-ideal treatment result. However, a copy of the consent form that has been signed by the patient can serve to refresh faulty patient recollections and deter malpractice actions.
Ultimately, to prevail on a claim alleging lack of informed consent, the patient must demonstrate that he or she suffered an injury as a result of the occurrence of a risk associated with the dental procedure, and that he or she was not provided the required information about the reasonably foreseeable adverse sequelae. Most importantly, the patient must establish that if he or she had been provided the appropriate information about the foreseeable risk that actually materialized (eg, a lingual paresthesia associated with the removal of an impacted wisdom tooth), a reasonably prudent patient in the same situation would have declined to have the treatment rendered in the first place. Although there is no precise definition of what constitutes a “reasonably foreseeable risk,” a dentist should disclose those risks associated with any procedure that are taught in dental schools or generally reflected in professional texts, treatises, and continuing education programs.
The American Academy of Implant Dentistry provides its members a sample informed consent for implant treatment on its website at www.aaid-implant.org. Some practitioners believe that the multiple risks delineated in the sample consent form could deter patients from receiving implant treatment. On the other hand, others believe it would be more prudent to risk losing an implant case rather than commence treatment on a patient who could later return to haunt the practitioner in malpractice litigation alleging lack of informed consent.