Informed Consent in Dentistry: Can Change Impact Personal Injury Cases?

An excellent article appears in the Spring 2017 edition of the The Journal of Law, Medicine & Ethics (vol. 45, pp. 77-94) written by Kevin I. Reid titled “Informed Consent in Dentistry.”

The article discusses how informed consent is respecting the ethical right of an individual to make decisions about one’s body and only have actions undertaken on their body with authorization without undue influence. In order for informed consent to be considered valid in dentistry the following must occur: (1) the patient is competent and has the ability and capacity to understand and decide, (2) the dentist discloses material information, (3) the patient understands, (4) the patient is voluntarily entering the arrangement, and (5) the patient provides authorization to go ahead. Every patient however comes to a different degree of understanding to authorize treatment based on their prior dental experiences, education, motivation, attention, and comprehension of material provided. As a result of this, efforts have been made in recent years to engage in shared decision making which is a collaboration between patient and dentist to share the best available evidence and where patients are supported to consider options. This is of particular importance when the best available evidence may be inconclusive and could lead to multiple outcomes. Dentists should initiate a discussion with the patient, encourage the patient to describe their understanding of the proposed intervention and ask question and probe as needed to make sure they believe the patient is well informed about treatment.

The article goes on to discuss how simply giving a patient an informed consent form is not necessarily enough as patients often don’t read them or don’t fully understand what is said. The article goes on to provide an example of how to facilitate a patient’s autonomy, the dentist must inform the patient about alternative treatments that may be available and if the dentist is able or willing to perform the alternative treatments.

“It is commonplace for dentists to advise patients with irreversible pulpitis about options of endodontic treatment followed by crown versus extraction. Were the dentist to claim that the only option is the more profitable endodontic/restorative one, and omit extraction from discussion, the informed consent process would be manipulative and paternalistic, effectively obstructing patient participation.”

In the article the author also makes the case that many clinicians in the U.S. may perceive the process of obtaining patient consent to be more of a legal liability-avoidance exercise on behalf of the treating institution or clinic rather than a process of facilitating patient understanding and autonomous decision making. Thus they tend to focus on possible adverse effects and risks during the informed consent process instead of focusing on educating patients in order to further facilitate their autonomy. The article later states

“Instead, the process of informed consent should be seen as a moral moment between the dental practitioner and patient, reinforced by a genuine attempt to help the patient consider recommended intervention, all under the auspices of respecting moral worth and dignity.”

Currently their are two different standards used for informed consent: “the reasonable person standard” and “the professional standard.” There has been a trend in recent years to move towards the reasonable person standard perhaps to avoid a potential conspiracy of silence by physicians. In the “reasonable person standard” dentists have a duty to inform a patient regarding specific information about the facts and circumstances of the treatment that would be found to be material by a reasonable patient in making the decision to undertake a particular course of treatment, regardless of whether the patient has sought to obtain the information from the dentist.

The author goes on to say that in his experience the ideal informed consent process is rarely achieved in dentistry. One reason for this is due a a strong attachment to practice isolationism which can obscure incompetence, subtle but unethical behaviors, and clinical unorthodoxy. The author states

“For example, performing treatments primarily to generate income, providing interventions with little or no evidence-base, and conducting interventions without educating patients about less expensive alternatives is at odds with the codified ethical positions established by the flagship organization in dentistry and virtuous healthcare practice.”

Dentists may take such positions in order to make money quickly. This is contributed by the fact that many dentists graduate with debts of several hundreds of thousands of dollars. Thus a dentist is left juggling a balance between primacy of patient welfare versus actions driven by profit interests. Even so it is imperative that dentists all understand that for informed consent all treatments should be preceded by a process of conversation discussing treatment justification, risks, benefits, goals, and alternative options for treatment as a result of respecting the dignity of patients and their autonomy.

dentist patient treatment - Informed Consent in Dentistry: Can Change Impact Personal Injury Cases?

The above image is from the Illinois National Guard and has a Creative Commons Attribution license

The author provides another example to illustrate his point

“Dr. Susan Mills graduated from dental school…with educational debt of over $300,000. In addition…she borrowed $500,000 more to purchase and refurbish her new practice…Mrs. Salinas, presented… for a ‘chipped tooth in the back.’ On exam, Dr. Mills observed a molar tooth that had been heavily restored with amalgam but the tooth was in very good condition otherwise both clinically and radiographically. There were many treatment options…among these, the placement of the new crown was much more profitable for Dr. Mills and she assumed that Mrs. Salinas’ dental insurance would cover…Dr. Mills concluded, ‘We should put a crown on that tooth Mrs. Salinas. It’s pretty broken down.’ There was no mention of other treatment options, but a consent form listing possible adverse outcomes was signed. Mrs. Salinas …sought a second opinion from another dentist in town… remarked…’there are many options here including a crown, a new filling, a repaired filling, or even a partial crown. Each has its pluses and minuses. We should go over these options carefully.’ Mrs. Salinas revealed that she had recently incurred formidable and unexpected financial losses, and … she was ‘so disappointed in Susan Mills; she… become money hungry. I guess I will have to tell my family to avoid having her as their dentist unless they want to get treatment they don’t need’.”

In this case Dr. Mills manipulated Mrs. Salinas without any persuasion or coercion to do the treatment she wanted her to do by witholding information to shape Mrs. Salinas understanding of the situation. The article also provides several other relevant examples in the article of situations where informed consent did not occur properly. To help rectify these issues, the process of shared medical decision is suggested. Such a model consists of a dentist providing high quality information, determining what patient’s do and do not know, and employing decision-making aids if necessary. Next the dentist should support and encourage the patient to react to the information provided. Then, dentists should step back and summarize in what is called choice talk. Next, dentists should engage in a discussion of treatment options in what is called option talk. Finally, in decision talk, the patient decides the treatment and the dentist confirms that the patient understands the rationale, goals, benefits, and risks of that treatment.

The author concludes by saying that if dentistry is to remain a healthcare profession respected in the eyes of the public, it must encourage dentists and dental education leaders too do their best to create a level of trust that dentists can be relied upon to focus primarily on the welfare of patients. The author feels that such trust starts at the informed consent process. Perhaps creating more trust between patients and the public can impact personal injury cases and lead to less of them in the future. Even so stories like Mrs. Salinas do occur where informed consent was not followed properly. If you feel you have a potential legal case as a result of of a physician or dentist not properly following the informed consent procedure you may want to reach out to a personal injury attorney. To learn more about ethics in dentistry you may also want to check out the American Dental Association code of ethics.

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