By Dan Schulte, J.D.
MDA Legal Counsel
From the May 2011 issue of the Journal
Question: More and more I have patients refusing exams and X-rays for financial reasons. These patients only want to have their teeth cleaned. I am uncomfortable allowing this in my practice. What will happen if diseases or other conditions go undiagnosed that could have been detected with an exam or an X-ray? Will I be deemed negligent for failing to insist on an exam and X-rays? What should I do to protect myself? Can I tell patients that practicing like this is illegal?
Answer: This is a very difficult situation. The standard of practice would likely dictate that an exam be performed and X-rays taken, but you do not have the ability to force patients to submit to them. This scenario has become more common as Michigan’s economy has deteriorated and patients have lost dental plan coverage and have fewer resources of their own to dedicate to their dental care.
Your questions relate to the requirement of informed consent. I have written in this column in the past that dentists must obtain consent from their patients prior to providing treatment, and when treatment that would be considered necessary to meet the standard of care is refused by a patient. What constitutes proper informed consent is not set forth with specificity in a statute or court opinion. If you are sued for malpractice by a patient alleging that his or her informed consent was not obtained due to your lack of explanation, the jury will be given the following instruction or something similar: "Negligence may consist of the failure on the part of the dentist to reasonably inform the patient of their risks or hazards that may follow the treatment or services contemplated by the dentist or the patient’s refusal to accept such treatment or services. By ‘reasonably informed’ I mean that the information must have been given timely and in accordance with the accepted standard of practice among members of the profession with similar training and experience in this community or a similar community."
Although informed consent may be obtained orally, the best practice is to obtain it in writing, signed by the patient. You must properly inform your patients of the consequences of refusing an exam and/or an X-ray. You need to make it very clear to them what conditions could go undiagnosed without the exam and/or X-rays.
There is no standard consent form that will work in all situations. The form available for download is a suggested form that you might consider using. Please be advised that this form should be modified by you to fit the facts and circumstances of your particular case.
Finally, you should consider establishing a policy for your practice limiting the period of time a patient may have his teeth cleaned without submitting to an examination and/or X-rays. It would be advisable to not allow this to occur for more than one or two visits. At some point, if a patient is unwilling to allow you to do your job, you must make the decision to discharge the patient from your practice.