By Tanya Nardone, Esq. and Erin Myers, JD/MHA Student

To protect you and your dental practice from potential lawsuits, it is important to ensure that you are utilizing procedure-specific consent forms. Each different dental procedure—including wisdom teeth extraction, implants, and periodontal surgery— presents its own unique risks to patients. These risks could lead to potential lawsuits where the risks and alternatives of the specific procedure were not properly explained and understood by the patient.

Steps You Should Take to Limit Liability

In assuring that you have obtained adequate informed consent from your patient for a specific procedure, you should:

1)     Fully explain the risks, benefits, and alternatives, including the risks of not providing the treatment;

2)     Ensure that the patient understands the specific procedure and risks;

3)     Be sure to provide opportunities for the patient to ask questions; and

4)     Ensure that the patient has expressly accepted the procedure and has assumed the associated risks via a written consent form.

Implied consent—where no written or oral contract needs to be made—may apply in (i) medical emergencies; (ii) where consent would have been given if the patient were able to grant consent; or (iii) when a reasonable person would have granted consent. But, dentists should rely on patients assuming the particular risks for specific procedures via written forms. These written forms may serve as proof of patient consent to the procedure and its unique risks in the event of a lawsuit. Furthermore, procedure-specific consent forms may even prevent potential lawsuits as patients will have a greater knowledge of their particular procedure.

Malpractice and Consent Forms

It is important to note that properly executed consent forms will not protect you in the event of malpractice. To prove that a provider committed malpractice, the patient must establish the existence of negligence, specifically that: (i) a duty of care existed; (ii) that duty was breached; (iii) an injury took place; (iv) and the provider’s breach of the standard of care was the proximate cause of the injury. Therefore, in addition to providing adequate procedure-specific consent forms, it should go without saying that you should also follow proper standards of care.