The ABCs of informed consent

SAN FRANCISCO - A South Carolina jury awards a patient $2 million after a dentist pulled all of her top teeth, allegedly without her consent. A Washington jury awards a patient $14.8 million after jaw surgery left her disabled and disfigured and the oral surgeon was found to have misinformed her about the procedure's risks. A California jury awards a patient $1.7 million after they determine that 3D imaging could have avoided a misplaced dental implant and permanent facial pain.

In each of these cases, the verdict hinged on the interpretation of informed consent and standard of care, according to Edwin Zinman, D.D.S., J.D., in a lecture Thursday at the California Dental Association (CDA) fall meeting.

"Informed consent is meant to be a shield, not a sword," Dr. Zinman said. "It is all about protecting the best interest of the patient" -- and, in the process, protecting the dentist's best interests as well.

How one applies informed consent in both a clinical and legal setting involves determining whether the standard of care is being met, he noted. In the California case, for example, the implant had been placed so deeply it went into the inferior alveolar nerve canal and also exited out the other side, resulting in permanent pain for the patient (Journal of the History of Dentistry, Winter 2007, Vol. 55:3, pp. 134-138). The jury concluded that correctly interpreted 3D imaging would have avoided the injury and that the dentist should have used 3D imaging to minimize the risk of overdrilling.

"In California, the legal definition of 'standard of care' is 'reasonably careful' -- what a reasonably careful dentist would do in similar circumstances," Dr. Zinman said. "In this case, the standard of care included technological diagnostic improvements."

It also required the doctor to carefully consider the best treatment approach for the patient and use professional judgment to inform the patient of appropriate treatment options, keeping in mind the potential risks, benefits, and complications, he noted.

"We, as dentists, must practice to minimize, not maximize, risks. The law requires reasonable care as the standard of care in order to minimize risks," Dr. Zinman said.

Alternatives, benefits, complications

This is where Dr. Zinman's "ABCs" of informed consent come in: "A" for alternatives, "B" for benefits, and "C" for complications.

"The ADA Code of Professional Conduct says you must inform the patient of both the proposed treatment -- including its benefits and potential complications -- and reasonable alternatives," he said. "One option is not enough."

In discussing the potential benefits and complications of the proposed treatment and alternatives, using lay language is imperative, Dr. Zinman added.

"Informed consent has to be in lay language so that the patient can understand what the risks are because, ultimately, it is the patient's decision," he said. "And you need to document that they have been given the necessary information to make this decision and that they understand the information they've been given."

It is also critical to be clear about the risks of not following the recommended treatment or diagnostic protocol. This is known as informed refusal, Dr. Zinman noted.

"Say you recommend laser periodontal surgery for your patient," he said. "You need to have them sign a form that says they understand that doing nothing can worsen their periodontal disease, including increasing gum pocket depth, which predisposes them to early tooth loss, infections, and abscesses."

Hand in hand with this is the refusal of treatment form, Dr. Zinman added. "If you show a patient this document and ask them to sign it, you'll be surprised how often they will change their mind and have the recommended procedure," he said. In some cases, he noted, you may want to decline further treatment if patients refuse, for example, to have an x-ray done. And if they refuse to sign the refusal of treatment document, be sure to include a note about this in their chart as well.

Patient postoperative compliance forms are another form of protection, Dr. Zinman said.

"In California, a patient can be found at fault if they do not follow your postoperative instructions," he said. "This is called comparative compliance."

Dr. Zinman also emphasized that you should never guarantee patients an outcome -- rather, promise to do your best to provide them with the optimum care possible.

"You cannot guarantee a particular result, otherwise a patient could sue you for breach of warranty (versus malpractice)," he said.

When it comes to protecting yourself from malpractice lawsuits, the most important thing is to make sure you are always acting in the patient's best interest, and that you document everything, Dr. Zinman concluded.

"In malpractice prevention, the name of the game is records, records, records," he said.

If you have a question regarding the interpretation of standard of care or informed consent, or are interested in getting copies of the various forms mentioned in Dr. Zinman's talk, e-mail him at [email protected].

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