Saturday, September 01, 2007
By Daniel J. Schulte, J.D.
MDA Legal Counsel
Published in the September 2007 issue of the Journal
Question: I have patients refusing exams and X-rays. 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?
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 becomes more familiar as Michigan's economy deteriorates and patients have fewer resources to dedicate to their dental care.
This question relates to the requirement of informed consent. We have written in this column in the past that dentists must obtain consent from their patients prior to providing treatment. 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/her informed consent was not obtained due to your lack of explanation, the jury will be given the following instruction:
"Negligence may consist of the failure on the part of the dentist to reasonably inform the patient of their 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 professional with similar training and experience in this community or a similar community."
Although informed consent may be obtained orally, it is far preferable to have it reduced to writing and signed by the patient. An example of a Patient Consent to Treatment Form has been provided in previous columns and is available on the MDA Web site. You must also properly inform your patients of the consequences of refusing an exam and/or an X-ray. The fact that you have done so should also be reduced to writing and signed by the patient.
There is no standard consent form that will work in all situations. The form 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 a particular case.
It would be prudent to establish a policy for your practice limiting the period of time a patient may have their 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.