Medicolegal Considerations

Legal Concepts Influencing Liability

To understand the value of and responsibility of the dentist in risk management, it is important to review several legal concepts pertaining to dental practice.

Malpractice is defined by the legal system as professional negligence. This occurs when treatment provided by the dentist fails to comply with the standard of care exercised by other similarly trained dentists in similar situations. In other words, professional negligence occurs when professionals fail to have or exercise the degree of judgment and skill ordinarily possessed and demonstrated by members of their profession practicing under similar circumstances.

In most states, standard of care is defined as that which an ordinarily skilled, educated, and experienced dentist would do (or not do) under similar circumstances. Most states adhere to a national standard for dental specialists but may follow a more regional standard for general dentists. The dentist is considered to have practiced negligently when a patient and his or her dental expert(s) convince a judge or jury that the dentist failed to comply with this minimal level of care and that such failure caused an injury.

In most malpractice cases, the patient must prove all of the following four elements of a malpractice claim: (1) existence of a duty—usually implied by the doctor-patient relationship; (2) breach of the duty—in malpractice, not practicing up to the standard of care; (3) damages—in nonlegal terms, an injury; and (4) causation—a causal connection between the failure to meet the standard of care and the injury. The initial burden of proving malpractice lies with the plaintiff (patient). The patient must prove by a preponderance (more than 50%) of the evidence that all four elements of the claim were met.

Risk Reduction

The foundation for all dental practice should be sound clinical procedures, but even when practitioners try to do all that they can to make sure that a procedure goes well, problems can still occur. To manage this possibility, risk reduction strategies should be adopted to properly address various aspects of patient care and office policy and to reduce potential legal liability. These aspects include ensuring effective dentist-patient and staff-patient communication, patient information, informed consent, proper documentation, and appropriate management of complications. Additionally, clinicians should note that patients with reasonable expectations and a favorable relationship with their dentist are much less likely to sue and more likely to tolerate complications.

Informed Consent

In addition to providing quality care, effective communication should be a standard practice in the dentist's office. Dentists can be sued not only for negligent treatment but also for failing to inform patients properly about the diagnosis; the treatment to be provided; reasonable treatment alternatives; and the reasonable benefits, risks, and complications of each treatment option. Treatment without proper informed consent can be considered battery —that is, intentionally touching a person without his or her consent.

The concept of informed consent is that the patient has a right to consider known risks and complications inherent in a treatment. This enables the patient to make a knowledgeable, voluntary decision whether to proceed with the recommended treatment or choose another option. If a patient is properly advised of inherent risks, even if a complication occurs, the dentist is not legally liable in the absence of negligence. However, a dentist can be held liable when an inherent risk occurs after the dentist fails to obtain the patient's informed consent. The rationale for liability is that the patient was denied the opportunity to refuse treatment after being properly advised of risks associated with the treatment and reasonable options.

Current concepts of informed consent are based as much on providing the patient with the necessary information as on actually obtaining a consent or signature for a procedure. In addition to fulfilling the legal obligations, obtaining the proper informed consent from patients benefits the clinician in several ways. First, obtaining an informed consent offers the dentist the opportunity to develop better rapport with the patient by demonstrating a greater personal interest in the patient's well-being. Second, well-informed patients who understand the nature of the problem and have realistic expectations are less likely to sue. Finally, a properly presented and documented informed consent often prevents frivolous claims based on misunderstanding or unrealistic expectations.

The requirements of an informed consent vary from state to state. Initially the informed consent process involved informing patients that bodily harm or death may result from a procedure. Discussions regarding minor, unlikely complications that seldom occur and infrequently result in significant ill effects are not required. However, some states have adopted the concept of material risk, which requires dentists to discuss all aspects material to the patient's decision to undergo treatment, even if it is not customary in the profession to provide such information. A risk is material when a reasonable person is likely to attach significance to it in assessing whether to have the proposed therapy. When the word “reasonable” appears in a legal definition and if a lawsuit occurs over the matter, the jury will decide what it means. The implications of this are discussed later in this chapter.

In most states dentists have a duty to obtain the patient's consent; they cannot delegate the entire responsibility. Although staff members in the dental office can present the consent form and the patient may be shown a video that provides information as part of the informed consent process, the dentist should meet with the patient to review treatment recommendations, options, and the risks and benefits of each option; the dentist must also be available to answer questions. Although not required by the standard of care in many states, it is advisable to get the patient's written consent for invasive dental procedures. Parents or legal guardians must sign for minors. Legal guardians must sign for individuals with mental incapacities. In certain regions of the United States, it is helpful to have consent forms written in other languages or have multilingual staff members available to assist with communication.

Informed consent consists of three phases: (1) informing, (2) written consent, and (3) documentation in the patient's chart. In obtaining informed consent, the clinician should conduct a frank discussion and provide information about seven areas: (1) the specific problem, (2) the proposed treatment, (3) anticipated or common side effects, (4) possible complications and approximate frequency of occurrence, (5) planned anesthesia and any material risks of the anesthesia, (6) treatment alternatives, and (7) uncertainties about final outcome, including a statement that the planned treatment has no absolute guarantees of success.

This information must be presented in such a manner that the patient has no difficulty understanding it. In the event of a lawsuit, the jury will determine whether the information was provided in an understandable manner. Thus the dentist should provide information such that the average juror would be able to understand descriptions of treatment plans and risks. Video presentations, including Internet-based interactive education, describing dental and surgical procedures and the associated risks and benefits are available. These can be used as part of the informed consent process but should not replace direct discussions between the dentist and the patient. At the conclusion of the presentation, the patient should be given an opportunity to ask any additional questions.

After these presentations or discussions, the patient should sign a written informed consent. The written consent should summarize, in easily understandable terms, the items presented. Some states presume that if the information is not on the form, it was not discussed. Whether the patient can read and speak English should also be documented; if the patient does not read or speak English, the presentation and written consent should be given in the patient's spoken language. To ensure that the patient understands each specific paragraph of the consent form, the dentist should consider having the patient initial each paragraph on the form.

An example of an informed consent document appears in Appendix 4 . At the conclusion of the discussion, the patient, the dentist, and at least one witness should sign the informed consent document. In the case of a totally electronic record system, signature pads should be used to obtain the patient's consent. In the case of a minor, the patient and the parent or legal guardian should sign the informed consent. In most states, the age of majority (when the patient is no longer a minor) is 18 years. There are a few exceptions, including Mississippi (21 years); Alabama, Delaware, and Nebraska (19 years); Nevada, Ohio, Utah, and Wisconsin (18 years or graduation from high school, whichever is earlier); and Arkansas, Tennessee, and Virginia (18 years or graduation from high school, whichever is later). In some states, minors may sign the informed consent for their own treatment if they are married or pregnant. Before assuming this to be the case, the dentist should verify local regulations.

The third and final phase of the informed consent process is to document in the patient's chart that an informed consent was obtained after the dentist discussed treatment options, risks, and benefits with the patient. The dentist should record the fact that consent discussions took place and should also record other events such as showing videos and providing educational brochures. The written consent form should be included.

In three special situations, the informed consent process may deviate from these guidelines: (1) A patient may specifically ask not to be informed of all aspects of the treatment and complications; if so, this must be specifically documented in the chart and signed by the patient. (2) It may be harmful in some cases to provide all of the appropriate information to the patient. This is termed therapeutic privilege for not obtaining a complete informed consent. Therapeutic privilege is controversial and would rarely apply to routine oral surgical and dental procedures. (3) A complete informed consent may not be necessary in an emergency, when the need to proceed with treatment is so urgent that the time taken to obtain an informed consent may result in further harm to the patient. This also applies to management of complications during a surgical procedure. It is assumed that if failure to manage a condition immediately would result in further harm to the patient, then treatment should proceed without obtaining specific informed consent.

Patients have the right to know whether any risks are associated with their decision to reject certain forms of treatment. This informed refusal and attempts to inform the patient of the risks and consequences of refusing treatment should be clearly documented in the chart. Patients who do not appear for needed treatment should be sent a letter warning them of potential problems that may arise if they do not seek treatment. Copies of these letters should be kept in the patient's chart.

Records and Documentation

Poor record keeping is one of the most common problems encountered in the defense of a malpractice suit. When the quality of patient care is questioned, the records supposedly reflect what was done and why. Poor records provide plaintiff attorneys with an opportunity to claim that patient care must also have been substandard. Poor documentation also makes it difficult for the dentist to recall what happened during a particular patient encounter, thus harming the dentist's defense. Even though a perfect record is neither possible nor required, records should reasonably reflect the diagnosis, treatment, consent, complications, and other key events.

Adequate documentation of the diagnosis and treatment is one of the most important aspects of patient care. A well-documented chart is the cornerstone of any risk management program. If dentists do not document fundamental clinical findings supporting the diagnosis and treatment, attorneys may question the need for treatment in the first place. Some will argue that if something was not charted, it did not happen. The following 11 items are helpful in recording in the chart:

• 1

  Chief complaint

• 2

  Dental history

• 3

  Medical history

• 4

  Current medication

• 5

  Allergies

• 6

  Clinical and radiographic findings and interpretations

• 7

  Recommended treatment and other alternatives

• 8

  Informed consent

• 9

  Therapy actually instituted

• 10

  Recommended follow-up treatment

• 11

  Referrals to other general dentists, specialists, or other medical practitioners

Ten frequently overlooked pieces of information should be recorded in the chart:

• 1

  Prescriptions and refills dispensed to the patient

• 2

  Messages or other discussions related specifically to patient care (including telephone calls)

• 3

  Consultations obtained

• 4

  Results of laboratory tests

• 5

  Clinical observations of progress or outcome of treatment

• 6

  Recommended follow-up care

• 7

  Appointments made or recommended

• 8

  Postoperative instructions and orders given

• 9

  Warnings to the patient, including issues related to lack of compliance, failure to appear for appointments, failure to obtain or take medication, instructions to see other dentists or physicians, or instructions on participation in any activity that might jeopardize the patient's health or success of a procedure

• 10

  Missed appointments

Corrections should be made by drawing a single line through any information to be deleted. Correct information can be inserted above or added below, along with the correct date. Any crossed-out deletion should be initialed and dated. No portion of the chart should ever be discarded, obliterated, erased, or altered in any fashion. In some states, altering records with the intent to deceive is a felony.

The period for maintaining records varies from 3 to 10 years and can generally be found in each state's Dental Practice Act. Records should be kept long enough to be available should a patient decide to sue; this depends on the state's statute of limitations. In the case of minors, the statute of limitations does not begin until the patient reaches the age of majority, as described in the section on informed consent.