Protecting Your Dental Practice from Liability for Lack of Patient Informed Consent

The dental attorneys of Nardone Limited, in Columbus, Ohio, strive to protect our dental clients from potential liabilities that can arise from the day-to-day operation of a dental practice. One of those potential sources of liability is in the area of patient informed consent.

Liability for Lack of Informed Consent.

In our previous article entitled Importance of Procedure-Specific Consent Forms, we explained that a dentist’s failure to obtain a patient’s informed consent before performing a dental procedure could result in a potential lawsuit against the doctor. Thus, we identified four steps that a dentist should take to limit his or her exposure to liability for a claim based on lack of informed consent. Under Ohio law, the tort of lack of informed consent is established when:

(a) The doctor fails to disclose to the patient and discuss the material risks and dangers inherently and potentially involved with respect to the proposed procedure, if any;

(b) The unrevealed risks and dangers which should have been disclosed by the doctor actually materialize and are the proximate cause of injury to the patient; and

(c) A reasonable person in the patient’s position would have decided against the treatment had the material risks and dangers inherent to the treatment been disclosed to him or her prior to the treatment.

Material Health Risks.

One of the dilemmas that doctors face is determining what risks and dangers are sufficiently “material” to require disclosure. The test in Ohio for whether a risk is material is whether a reasonable person, in what the doctor knows or should know to be the patient’s condition, would likely attach significance to the risk or risks in deciding whether or not to have the proposed treatment. Thus, while a dentist is not required to identify and disclose each and every possibility of harm that could theoretically result from the treatment, a proper informed consent form will identify all health risks commonly associated with the procedure—even if the risk is remote. If the dentist believes a patient would attach significance to the risk in deciding whether to move forward with the procedure, the health risk should be included in the doctor’s informed consent form and fully explained to the patient. It is better to be over-inclusive than under-inclusive when it comes to disclosing potential health risks to patients.

Items to be Included in a Proper Informed Consent.

In addition to disclosing material health risks associated with the specific treatment or procedure, a properly drafted informed consent form should contain the following items: (i) the nature and purpose of the treatment or procedure; (ii) what the treatment or procedure is expected to accomplish; (iii) any alternative treatments or procedures; and (iv) the name of the doctor who will perform the intended procedure. Further, the patient—or the patient’s legal guardian if the patient lacks capacity to consent—should sign an acknowledgement at the bottom of the informed consent form: (i) authorizing the treatment or procedure; (ii) acknowledging that each of the above items were disclosed and discussed with the patient; and (iii) acknowledging that the patient had the opportunity to ask any questions regarding the treatment or procedure, and any alternative treatments, and that all questions have been answered satisfactorily.

Contact Nardone Limited.

Nardone Limited frequently assists dentists and dental practices with preparing informed consent forms that not only help to protect dentists against claims for lack of informed consent, but more importantly, educate patients regarding the treatment that they are about to receive. After all, a well-informed patient who understands the nature, goals, and health risks associated with a treatment is much likelier to be satisfied with the treatment, and to return to the dentist for future treatment. If you need assistance preparing informed consent forms for the various treatments your practice offers, please contact us today for a consultation.