by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the April-May 2001 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 that 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 is 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 that the MDA legal counsel has been reluctant to suggest a particular form.
Nevertheless, with some reservation and based upon the aforesaid disclaimer, at the end of this column is a patient consent form that could be modified by dentists to fit each particular case.
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 pre-existing form.
PATIENT CONSENT FORM
This Model Patient Consent Form is provided by the Michigan Dental Association to its members with the understanding that no single consent form can specifically address every type of dental treatment and all the risks and possible consequences of all types of dental treatment. In addition, it is provided with the understanding that (as is more fully explained below) obtaining a patient’s signature on a consent form will not in and of itself guarantee that informed consent has been obtained from a patient and the Michigan Dental Association disclaims any such representation or warranty.
ABOUT INFORMED CONSENT
- Dentists must obtain consent from the patient (or a patient’s parent or someone legally authorized to obtain treatment for the patient) prior to providing dental treatment. No Michigan statute requires the consent to be in writing. However, this is a wise practice.
- The consent (whether oral or written) must be informed. This means that a dentist must explain to the patient the condition, the treatment alternatives and the potential consequences.
- The failure to obtain informed consent from a patient is negligence (i.e. malpractice). Michigan’s judges give standard form instructions to juries. The standard jury instruction regarding informed consent states: “negligence may consist of the failure on the part of the dentist to reasonably inform the patient of risks or hazardous 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 similar community.”
- Obtaining a patient signature on a consent form, in and of itself, may not be sufficient to evidence the fact that you reasonably informed a patient in all circumstances. The amount of conversation needed with the patient will vary in direct proportion with the complexity of the proposed treatment. It is not possible to include in a single consent form all the information that should be present for all types of dental treatment. This makes it necessary for you to document in the patient’s record in reasonable detail these conversations. The signed patient consent form together with these notations in the patient’s record hopefully will provide you with the evidence you need to defend yourself if it is later alleged that you did not obtain informed consent from a patient.