The Council has noticed an increase in the num ber of claim s w here the patient sustains the effects of a risk of the procedure and alleges he was not told of the risks before treatm ent. Receiving inform ed consent from the patient can reduce the chance of a professional liability claim being filed or aid in the defense of a claim. In addition, the dentist can assist in defending claims. A second article in this tw o-part series will focus on other com m on causes of dental professional liability claims.

Dental professional liability prevention: part one Council on Insurance

T he cost o f dental professional liability insurance is increasing at an alarm ing rate because o f an increase in the num ber o f claim s, the am ount of dam ages paid, inflation, and increased legal ex­ penses. In addition to dental professional liability insurance carriers raising rates, several insurance com panies have stopped writing dental profes­ sional liability coverage. T o assure the availabil­ ity of affordable professional liability insurance, the A m erican D ental A ssociation C ouncil on In ­ surance will begin a m onitoring program to d e­ term ine preventive m easures that could be taken to elim inate, reduce, or better defend claims. T he C ouncil on Insurance professional liability claims m onitoring program will consist o f review ­ ing the loss statistics com piled by W. F . Poe and A ssociates, national adm inistrators, and C hubb 1054 ■ REPORTS OF COUNCILS / JADA, Vol. 96, June 1978

and Son, In c., the underw riters o f the A m erican D ental A ssociation sponsored Professional P ro ­ tecto r Plan. L oss statistics will be review ed to determ ine the causes o f claim s. W hen the statis­ tics establish that several claims have a similar cause, the C ouncil will review the conditions that gave rise to liability. T he final step will be the establishm ent o f preventive m easures, where feasible, to control com m on conditions of poten­ tial danger that could give rise to liability. T he C ouncil has determ ined that several dental professional liability claims have com m on causes. T he com m on causes o f such claims include re­ versed oxygen and nitrous oxide tubes, extraction o f w rong teeth, sending the w rong p atien t’s rec­ ords and radiographs to a specialist, not taking com plete health histories before using drugs or

anesthesia, guaranteeing the results o f dental w ork, m isdiagnosis, not referring a patient to a specialist w hen necessary, poor com m unication betw een th e general practitioner and specialist, and not receiving the p atien t’s inform ed consent. In addition, the C ouncil has been inform ed by the adm inistrators and underw riters o f the P rofes­ sional P ro tecto r Plan that the dentist can aid in the defense o f professional liability claims by keeping detailed reco rd s, by retaining radiographs or copies, by notifying the insurance com pany im­ m ediately if there is a possibility o f a claim being filed, and by cooperating b etter with the insurance com pany and defense attorney. Som e o f the claim s could be elim inated w hereas the num ber o f others could be reduced. F o r exam ple, if nitrous oxide and oxygen lines are properly inspected after the installation o f the sys­ tem , claim s resulting from crossed lines could be elim inated. T aking a com plete health history b e­ fore treatm en t could reduce the chance o f giving a p atient a drug th at he is allergic to. T his is the first o f a series o f tw o articles outlin­ ing the findings o f the C ouncil on Insurance and recom m ending how potential dental professional liability claim s could be elim inated, reduced, or b etter defended.

Inform ed consent All courts agree th at the consent o f the patient m ust be given before the com m encem ent o f any dental procedure. C ertain exceptions exist in situations w here consent is im possible o r im prac­ ticable to obtain from the patient, such as in an em ergency. In o rd er for the p atien t’s consent to be valid, the consent m ust be an inform ed con­ sent. A n inform ed consent consists o f the patient agreeing to th e dental procedure after an explana­ tion o f w hy the procedure is necessary, w hat al­ ternative form s o f treatm ent are available, w hat risks are inherent, and w hat w ould happen if treatm ent is not received. T he consent given by the patient can be either express o r implied. A n express consent consists o f the patient using explicit and direct w ords that show his willingness to have th e procedure perform ed. A n implied consent can consist o f conduct or general lan­ guage o r it can be deduced from the circum ­ stances. A n im plied consent, w hen sufficient details are available to authenticate it, would be valid and

allow the dentist to begin treatm ent. F o r exam ple, if, after an exam ination, the dentist inform s the patient that he has a small cavity th at requires restoration and the patient rem ains in the chair waiting for the restoration to begin, an implied consent for the restoration will have been given. An implied consent is usually sufficient for a p ro­ cedure that is com m only perform ed and has few know n risks. W hen a procedure has know n risks, the dentist should receive the p atien t’s express consent after informing the patient o f a num ber of items. T o receive an inform ed consent, the dentist m ust first discuss why the patient needs treatm ent and w hat treatm ent is indicated. T h e explanation should include the underlying causes as well as a description o f w hat procedures will be perform ed. Second, alternate plans o f treatm ent th at are available should be presented in addition to the reasons the dentist chose one course o f treatm ent as opposed to the alternate m ethods. T he patient m ust next be inform ed o f w hat would happen if no treatm ent w as rendered. T hird, the risks inherent to the procedure m ust be explained. T he dentist does not have to disclose risks th at ought to be know n by everyone or that the patient has knowledge o f because o f previous treatm ent. W hat m ust be disclosed are those risks that are unknow n to the patient and th at w ould be im portant for the patient to know to m ake an inform ed decision. T he dentist m ust know the risks o f a procedure known by others in the p ro ­ fession. H e has a duty to have the know ledge o f a reasonably well-trained and know ledgeable den­ tist practicing under like circum stances. A dentist probably does not have to disclose every risk that is inherent to the procedure; the ex act standard varies from jurisdiction to jurisdiction. H ow ever, the dentist should tell the patient all know n risks that have som e likelihood o f occurrence. F o r the patient to give an inform ed consent, the explanation m ust be given in term s he will under­ stand. In addition, the patient m ust be in such a condition th at he understands w hat he is doing. T he patient m ust have full control o f his senses and, therefore, not be under the influence o f drugs or alcohol. In cases w here the patient is a m inor or otherw ise incom petent, the consent o f a parent or guardian to the treatm ent m ust be obtained. The consent received from the patient for a particular procedure is consent only for that p ro ­ cedure and further w ork should not be done ex ­ cept in an em ergency situation. In em ergency situations w here a patient cannot consent because REPORTS OF COUNCILS / JADA, Vol. 96, June 1978 ■ 1055

he w as com atose or delirious, the law will infer consent if the p atien t’s life was in danger and it w as not practical to receive consent from an au ­ thorized person. If such em ergency care is re n ­ dered, the patient should be required to sign an em ergency care acknow ledgem ent and be re ­ ferred for further treatm ent. A fter the patient gives his consent to a pro ce­ dure, either verbal or w ritten, he can later w ith­ draw th at consent. In order for the patient to w ithdraw consent, the patient m ust act o r use precise language and his action m ust be the prod­ uct o f a clear and rational mind. T he withdraw al m ust be given at a point when cessation o f the procedure is safe in the dentist’s professional judgm ent. In cases w here com plete disclosure o f all risks w ould be detrim ental to the patient’s well-being, the dentist has the right to w ithhold inform ation that could be harmful. Inform ation cannot be withheld m erely because if the patient knew the risks he would not undergo treatm ent. W here the disclosure would be psychologically detrim ental and pose a substantial threat to the p atien t’s well-being, inform ation can be withheld. T h e im plem entation o f an office procedure to receive the p atien t’s inform ed consent requires spending m ore tim e with each patient and keeping careful records. T he tim e spent in explaining a procedure to a patient will also help im prove p a ­ tient relations. D entists with good patient rela­ tions are less likely to have a professional liability claim filed against them . In addition, receiving inform ed consent after an explanation o f the risks o f a procedure will form the defense if a claim is filed for nondisclosure. A lthough oral and implied consent can be valid, they are open to m isunderstanding and can be difficult to prove. If the patient is required to consent orally, he should do so in the presence of a w itness. In addition, the risks, alternate m ethods o f treatm ents, underlying causes, and w hat would happen if the condition w as not treated should be explained in the presence o f an assistant, hygienist, or associate. T he inform ation given the patient should then be recorded in his file. T he b est m ethod to insure having p roof that the patient was inform ed as to the potential risks o f a dental procedure is to require the patient to sign a consent form . T he signing o f consent form s should be done in the presence o f a w itness, who should also sign the form. T he signed consent form then becom es part o f the p atien t’s record. 1056 ■ REPORTS OF COUNCILS / JADA, Vol. 96, June 1978

C onsent form s for various dental procedures should be prepared by an attorney working in conjunction with the dentist. A consent form is adm issible as evidence to establish th at the patient agreed to the treatm ent. In addition, the consent form , if properly drafted, will aid in establishing that all o f the elem ents o f inform ed consent w ere m et. H aving a signed con­ sent form as part o f the p atien t’s record will help elim inate the problem s o f p ro o f associated with implied and oral consents. F urtherm ore, an a tto r­ ney who exam ines a properly executed consent form will be less likely to pursue a claim involving explanation o f the procedure and consent. In ­ form ed consent may be a valid defense to the risks that can accom pany a dental procedure. H o w ­ ever, inform ed consent will not be a valid defense if the risk results because o f the dentist’s negli­ gence. T he C ouncil is aw are th at one o f the reasons inform ed consent is not received is because the procedure is considered tim e-consum ing. T he am ount of time required to receive inform ed con­ sent is minimal w hen com pared to the am ount of time defending a professional liability claim en­ tails. In addition to time aw ay from the office, a professional liability suit causes em otional dis­ tress, could affect future insurability, and could diminish the dentist’s professional reputation. T he C ouncil advises that all dentists learn as m uch as possible about professional liability p re­ vention and spend the additional tim e necessary to im plem ent the C ouncil’s recom m endations. O u tlin e o f in f o r m e d c o n s e n t p r o c e d u r e :

m Before treatm ent, inform the patient o f the underlying causes o f his condition, the plan of treatm ent to be used and alternate plans o f tre a t­ m ent available, the know n m aterial risks o f the treatm ent to be used; and w hat would happen if all treatm ent w as withheld. ■ U se language the patient will un d erstan d ; use m odels o f teeth or m outh if necessary. ■ Inform the patient in the presence o f your assistant and record w hat w as told in the p atien t’s record. ■ If the patient is a m inor o r otherw ise incom ­ petent, the consent o f the p aren t or guardian for the treatm ent m ust be obtained. ■ H ave the patient o r p arent (if the patient is a minor) sign a consent form for the procedure after the explanation. ■ File the consent form w ith the p atien t’s rec­ ord.

How the dentist can assist if a claim is filed T h e best asset a dentist can have if a professional liability claim is filed is himself. T he dentist can and m ust aid his professional liability insurance carrier and attorney in the preparation of his de­ fense. T he defense o f a professional liability claim is a highly detailed and tim e-consum ing proce­ dure, especially if the case goes to court. T he dentist will be required to spend several hours with a claim s representative o f the insurance com pany and his defense attorney. If a dentist believes that a professional liability claim is going to be filed, he should inform his insurance com pany im m ediately. In addition, he should notify his attorney, if he has one. T he insurance com pany would probably require that the facts surrounding the incident be im mediately recorded while still fresh to avoid confusion later. T he d en tist’s records are as im portant to the defense as the d en tist’s cooperation. T he den­ tis t’s records provide a history o f the case and are adm issible as evidence to establish the factual basis o f w hether or not liability exists. T he C oun­ cil is aw are th at some cases o f professional liabil­ ity are lost because the dentist had poor records or no records at all. If this situation exists, the case could com e dow n to “ the p atien t’s w ord against th e d en tist’s w o rd .” T o have all of the facts docum ented, the dentist m ust m aintain good records. T he dentist should always record the date o f the visit, w hat treatm ent was rendered, the underlying causes, w hat the patient w as told about the treatm ent, and w hether further treatm en t is necessary. R adiographs and consent form s m ust also be m aintained as part of the p atien t’s perm anent record. T he question has often been asked as to how long a p atien t’s record should be kept. T he an­

sw er is forever, and the reason is th at the m ajority o f the statutes o f lim itations for m alpractice claims do not begin to run until the patient dis­ covers that he has been harm ed. A patient may not discover his cause o f action for several years after treatm ent has ceased. If a p atien t’s records are sent to a specialist or are given to the patient himself, the dentist should m aintain a duplicate of the records, including radiographs and consent form s. In addition to records and radiographs serving as the basis o f the defense o f a professional liabil­ ity claim, patient records can often deter a suit from being filed. A n attorney w ould be reluctant to continue action if the dentist’s records justify the plan o f treatm ent and that everything possible was done for the patient.

Sum m ary T he purpose of the claims m onitoring program of the C ouncil on Insurance is to determ ine w hether preventive m easures can be im plem ented by den­ tists to elim inate, reduce, or b etter defend profes­ sional liability claims. This article outlined some o f the findings and recom m endations o f the C ouncil in the areas o f inform ed consent and as­ sisting in the defense o f a professional liability claim. T he rem ainder o f the C ouncil’s findings and recom m endations will be presented in the second part o f the article. T he C ouncil believes that if its recom m endations are follow ed dentists can im prove the loss statistics for dental profes­ sional liability significantly.

This report was prepared by Alan M. Komensky, assistant secre­ tary, Council on Insurance, at the request of the Council on Insur­ ance.

REPORTS OF COUNCILS / JADA, Vol. 96, June 1978 ■ 1057

Dental professional liability prevention: part one. Council on Insurance.

The Council has noticed an increase in the num ber of claim s w here the patient sustains the effects of a risk of the procedure and alleges he was no...
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