Tuesday, November 05, 2013
By Dan Schulte, J.D.
MDA Legal Counsel
From the November 2013 issue of the Journal
Question: Is it possible to provide me with a universal consent form to use with minor patients? I could use such a form when minors are dropped off at the office for exams and/or treatment. The form would cover consent for all the foreseeable types of dental treatment expected to be provided, such as exams, radiographs, teeth cleaning, application of sealants, use of local anesthesia, and so on. The parent or some other legally authorized person could sign the form when dropping the child off and then leave. Dental treatment for the child would not then be held up just because the person authorized to provide specific consent wasn’t in the office. Could such a universal form be developed? Would you recommend the use of such a form?
Answer: No. You must obtain informed consent prior to providing any dental services to a patient. When the patient is a minor his or her parent or some other legally authorized person must provide consent.
If you are sued for malpractice by a patient alleging that informed consent was not obtained due to your lack of explanation, failure to provide information, etc., the jury will be given instruction similar to the following:
“Negligence may consist of the failure on the part of the dentist to reasonably inform the patient of the risks or hazards which may follow the treatment or the 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.”
It is possible that informed consent may be obtained orally. However, the best practice is to obtain it in writing, signed by the patient, a minor patient’s parent, or other person legally authorized to do so on behalf of a minor patient. Regardless of how informed consent is obtained, you must first properly inform and describe for the patient, the minor patient’s parent or other legally authorized person consenting on behalf of the minor all the consequences of obtaining the treatment, likely outcomes, side effects, etc.
As has been written in this column several times in the past, what must be contained in an informed consent form has not been specifically described in a statute or court opinion.
It is hard to imagine that a universal consent form could be developed that would adequately describe all of the treatments that potentially might be performed on a minor patient. It is also hard to imagine that such a form could be developed adequately explaining all of the risks and possible complications known or associated with all those potential treatments. For these reasons, developing a universal informed consent form and recommending its use is not advisable.
Instead, you should clearly define what will be done at each office visit. Developing a standard informed consent form specifically tailored to the services that you know you will be providing is advisable and prudent. The necessary explanation and information can be given to the minor patient’s parent or other person legally authorized to consent for the minor at the outset of the office visit; that person could then be absent while the services are being provided. This should be sufficient, assuming that you do not need to deviate from the anticipated services and they are provided as planned.