by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the October 1993 issue of the Journal
Question: How can a dentist be protected from liability when patients who are susceptible to endocarditis, and have been advised by their physician to take antibiotics prior to dental treatment, refuse to do so?
Answer: To be liable for dental malpractice expert testimony is necessary to show that the dentist failed to meet the applicable standard of care. Any determination as to the standard of care can only be made by practicing dentists, not MDA or its legal counsel. The pivotal question is the applicable standard of care for a dentist with a patient having a known susceptibility to endocarditis. If it is possible that the standard of care requires a refusal to treat such a patient, a refusal to treat is the safest option.
If a patient has failed to premedicate, other options are available. Dentists may post signs in their offices stating which conditions warrant premedication, notifying patients that they will be required to sign forms certifying that they have taken the required medications as prescribed by their physician. The dentist may accommodate the patient by having the necessary antibiotics available in the dental office. Finally, dentists may make direct contact with a patient's physician in order to ascertain the nature of the patient's condition. Any of these steps should be charted.
If antibiotics are refused, the dentist is exposed to some risk in providing treatment. In that instance, a consent form, accompanied by verbal communications with the patient and proper charting, should be used in an attempt to achieve informed consent and shield the dentist from liability. The informed consent form should include the following:
- The name of the patient.
- That the patient has been diagnosed by his or her physician as having a susceptibility to endocarditis.
- Whether or not the physician was contacted, and what information was obtained.
- That the patient's physician and dentist have advised premedication with antibiotics prior to dental treatment.
- A list of all risks possibly associated with the failing to premedicate prior to dental treatment, including death.
- The patient's refusal to take antibiotics as directed by his or her physician.
- The patient's refusal to take antibiotics provided by the dentist prior to treatment.
- The risks, if any, associated with taking antibiotics.
- That the patient understands that it is his or her legal right to refuse medical treatment, and that he or she wishes to refuse antibiotics, and agrees to release and hold harmless his or her dentist from any resultant injury, risk, or death resulting from such refusal of antibiotics prior to dental treatment.
This form should be dated, witnessed and signed by the patient. The chart should reflect the information conveyed to the patient, as well as questions and answers by the patient and dentist.