Saturday, February 01, 1997
by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the February 1997 issue of the Journal
Question: I am aware that dentists must obtain informed consent from their patients for treatment, but I am not certain as to what I have to do to obtain this consent. Can you please give me some direction as to what I must do to assure that I have obtained informed consent from my patients? Can you provide dentists with a form for the patient to sign which could assure dentists that informed consent is achieved?
Answer: You are correct that all dentists must obtain consent from their patients prior to performing treatment or services. What constitutes informed consent, however, is not set forth in any statute or judicial pronouncement. There is no list of objective rules that must be followed to achieve informed consent. Whether informed consent is achieved depends upon the standard of practice established by the dental profession itself. The standard jury instruction given by trial judges to juries in Michigan lawsuits alleging lack of informed consent provides as follows:
- Negligence may consist of the failure on the part of the dentist to reasonably inform the patient of risks or hazards which may follow the treatment or services contemplated by the dentist. 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 this may leave uncertainty in the minds of some dentists, it is far preferable to a cookbook list of rules required to achieve informed consent. Such a list would change the focus from the professional standard of practice to a lay standard as to whether the information was communicated. It would abolish the requirement of expert testimony and result in liability based upon the factual determination as to whether the magic words were said. Dentists in Michigan are far better off under the existing standards of practice test for informed consent.
Informed consent may be communicated orally but it is better to reduce the communications to writing, particularly with respect to invasive procedures. Under all circumstances, dentists should chart in the patient's record all conversations with patients regarding consequences and risks of procedures. In addition to such charting, a written patient consent form is generally advisable.
Since informed consent depends upon the facts and circumstances of each case, there is no single patient consent form that can be universally used. In addition, simply obtaining a consent form signed by the patient does not necessarily achieve informed consent. It is for this reason the MDA legal counsel has been reluctant to suggest a particular form. Nevertheless, with some reservation and based upon the aforesaid disclaimer, the following sets forth a patient consent form that could be modified by dentists to fit each particular case:
Patient Consent Form
My dentist, Dr. (Name), has thoroughly explained the nature of (condition or disease) to me, its potential consequences if left untreated, and the likelihood that these consequences will occur. My dentist has also thoroughly explained the appropriate treatment and other treatment options for (condition or disease), the risks inherent in this treatment and the likelihood that these risks will occur. I have had the opportunity to ask my dentist all of the questions I wished to ask concerning (condition or disease) and its treatment, and my dentist has answered these questions to my satisfaction. I have had the opportunity to obtain a second opinion if so desired.
I am aware that the practice of dentistry is not an exact science and I acknowledge that no written or oral representations, warranties or guarantees have been made regarding the results of any treatment or services performed by my dentist.
Taking all of the above information into consideration, being of sound mind, legal age, competent to make my own decisions and fully understanding the nature and possible consequences of (condition or disease), the course of treatment and the risks inherent in such treatment, I consent to (explain treatment).
The specific information given to the patient relative to the condition or disease, consequences if the same is left untreated, appropriate treatment and options, risks inherent in the treatment and the response to the patient's questions should be recorded in the patient's chart in order to buttress the patient's general acknowledgement that this information was given. The signed patient consent form, coupled with the notations in the patient's chart, should provide the necessary evidence that the information was communicated. The specific information communicated, however, depends upon the standard of practice of the dental profession under the facts and circumstances of each case and is, therefore, not compatible with a preexisting form.