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DEFINITION AND LEGAL PERSPECTIVE – DDS
Few legal doctrines have generated as much discussion, confusion and misinterpretation as “informed consent.” Courts and legislatures in many states have established varying laws that define and interpret the doctor’s responsibility to obtain the patient’s informed consent prior to treatment.
It is difficult to formulate a single, simple statement on the legal doctrine of informed consent, as the doctrine has evolved from common law to a case-by-case basis (case law), and because the doctrine has many facets.
As a general rule, informed consent requirements are satisfied when the dentist discloses all relevant information to the patient, thereby enabling the patient to make an informed decision regarding the proposed treatment. In terms understandable to the patient, the disclosure should specifically include:
· The reason for and nature of the proposed treatment/procedure (diagnosis)
· Anticipated outcome and/or benefits
· Material risks of proposed treatment/procedure
· Alternative treatment/procedure
· Risks of not having the treatment/procedure (informed refusal)
· No guarantees
· Opportunity for the patient to ask questions and/or seek a second opinion
In most interpretations of consent law, there is no duty to discuss extremely rare (non-material) risks or the risks associated with non-invasive procedures (i.e. the taking of a radiograph).
In cases of minor children, they may, depending upon professional judgment and the “fear” factor, be included in the consent discussion. The person consenting to treatment must be the natural parent (not the stepparent or an older sibling) or the authorized legal guardian of the minor child. Bona fide emergencies represent a situation where informed consent for a minor may be difficult. For example, when bystanders bring a child to your office after a playground injury requiring urgent care (i.e., a dislodged tooth from a sports injury) and the parent can only be reached by telephone, or not at all, treatment may proceed without the formality of a consent discussion. However, it is wise to exhaust all efforts to reach a parent. If reached by phone, it may be possible to fax a consent form to the parent and, with a staff witness on an extension phone, review it carefully before proceeding. A signed form can be faxed back to your office prior to treatment. Document such a discussion thoroughly in your progress notes and have it countersigned by your staff witness. If questions regarding informed consent arise, the doctor should determine specific state requirements or interpretation of consent law by consulting with legal counsel (you may call Fortress at 1-800-522-6675) before proceeding with any treatment.