My cousin is an attorney. When she called to ask if I would do a favor for one of her partners and review a chart in a malpractice case, I said “yes.” Silly me, I forgot to ask whose side I was on. I went through the chart with a fine-toothed comb, looking for reasons the dentist should not be prosecuted. Unfortunately, he’s toast! You can avoid malpractice suits - all it takes is about 15 minutes to protect yourself!
The chart I reviewed was an absolute mess, but the case turned on a simple consent for treatment. A single signed piece of paper in the chart, and there would have been no case. The patient experienced persistent paresthesia of the tongue following the extraction of a lower third molar. This is a possible complication of oral surgery and does not necessarily indicate malpractice. It also is considered the standard of care to have a signed consent for extractions. While a piece of paper would have protected the doctor, the case is about communication, not paper.
The requirement is for the doctor to inform the patient, not for a form to be signed. A signed form does not automatically indicate that informed consent has occurred. The informed consent process begins with telling the patient about the current condition [diagnosis], the proposed treatment, and the alternatives to the proposed treatment. The next step is to tell the patient the risks and benefits associated with the proposed treatment, the alternative treatments, and no treatment. When these steps have been followed and the patient consents to treatment, he or she agrees to accept the risk of the procedure because that individual believes that the potential benefits outweigh the risks. If the patient has not been properly informed when he or she consents to treatment, the risk of the treatment remains with the doctor. The simplest way to defend yourself in a case like this is to have a signed informed-consent form.
If you have proper charts, there may be other ways to argue that the requirements of informed consent have been met. The first way is by recording the existing conditions. A diagram of the oral cavity with a red line drawn through a tooth does not describe an existing condition. When you indicate a tooth for extraction, there must be an accompanying description and diagnosis. For instance, with a lower third molar, does your chart indicate whether the tooth is fully erupted, if there is a soft-tissue impaction, or a partial or full bony impaction? If the diagnosis is infection, what is the origin and extent of the infection? Is this an abscess or a diffuse cellulitis? If you have not described the condition in the chart, it will be very difficult to argue that you properly described the condition to the patient.
When I was in dental school 25 years ago, I learned to include a notation in the chart regarding any instructions given to the patient. The primary notation I suggest you learn is “Disc. R B & A,” which is shorthand for “discussed the risks, benefits, and alternatives.” Of course, don’t make this notation until you actually have discussed the risks, benefits, and alternative treatments.
The chart notation in the case I was reviewing was “EXT 17 PB.” I finally decided that even though the X-ray didn’t look like it, the PB notation probably meant the doctor was calling this a partial bony impaction. The medical history was incomplete, there was no blood pressure recorded, and the chart notation consisted of five letters and two numbers. The first step in protecting yourself is to write in your charts as if you actually expect someone to read it! This is important because if someone is reading your chart, that person probably is searching for a way to find you at fault. Don’t make it easy for them!
I mentioned that you could protect yourself in about 15 minutes. I searched online for consent-for-treatment forms that could be downloaded. It was so easy that there is no excuse for not doing this. Imagine how bad it must look when patients sign three forms acknowledging the office financial policies, yet no forms consenting to treatment. The lawyers will lick their chops. Protect yourself!
Dr. Michael Gradeless, a 1980 graduate of Indiana University, practices preventive dentistry in Indianapolis with an emphasis on cosmetics and implants. He is an adjunct faculty member at Indiana University, where he teaches the Pride Institute university curriculum of dental management. He also is the editor for the Indiana Dental Association. Contact him at (317) 841-3130, or e-mail to [email protected].