by Lesley Ranft

A comprehensive informed consent policy limits your legal risk factors

As orthodontic treatment methods and technology continue to evolve, so should your communication with your patients. For example, as more people have become aware of the relationship between oral health and physical health, orthodontists may be held more accountable for their use of improved diagnostic equipment that uncovers medical conditions.

As Judge Donald E. Machen, DMD, MSD, MD, JD, MBS, CFA, of Pittsburgh explains, “Orthodontists frequently ask to what extent they are responsible for reviewing 3D imaging scans for both medical and dental conditions. The answer may appear cloudy, but best practices and the standard of care suggest that 3D scans must be evaluated as any other image, and if the practitioner doesn’t feel qualified to do so, it may be best to become skilled at their evaluation or send them to a radiologist for evaluation. In the end, good risk management has the most important goals of improving patient care and reducing, if not eliminating, professional negligence/malpractice actions. Also, a major component in avoiding these actions is good interpersonal relationships, with both patients and their parents.”

The advent of new procedures and involvement of other types of medical providers in treatment plans make it crucial that the communication channels be open. Add to this the fact that consumers have greater access to information, and the demand to develop strong interpersonal relations between orthodontist and patient has grown. In truth, informed consent is not defined by the proof of a document: The evidence of oral discussions and agreements leverages informed consent. As Linda Hay, an attorney practicing in Chicago, explains, “Too often, dissatisfied people who have had dental treatment who have signed an informed consent form succeed in relying on the defense that they were nervous, didn’t understand the document, and were presented with many papers to sign at the front desk. Orthodontists must not view the informed consent form as the wall of defense. The more documents that demonstrate informed consent, the better. Orthodontists ultimately bear the responsibility for informed consent, but staff needs to understand the importance of the informed consent process and must know how to identify red flags in patients.”

More often than not, people do not recall information that was exchanged about treatment. So, consistent routines performed within the practice to demonstrate informed consent and multiple forms of documentation are ways to limit medical malpractice liability. This begins with understanding the needs of each patient.

Demographics and High-Risk Candidates

Individual evaluations, identification for high-risk factors, communication, and documentation of the communication are a must. Bob Bray, DDS, MS, of Atlantic City, NJ, explains, “Following rules of informed consent and allowing patients to be well informed limit the consequences that may result from poor communication.”

The patient (and parent) evaluation should include a judgement about the patient’s ability to:

  • understand the impact on school or work;
  • manage the daily needs required for treatment;
  • manage complications should one occur; and
  • understand unique anatomical features that may impact the complexity of the treatment plan and/or results of treatment.

If a candidate for a given procedure fits into the high-risk category, consider sending the candidate home with a brochure about the procedure, benefits, risks, and alternatives. Patients and/or responsible parties can always be advised to write any concerns down on the brochure. The AAO offers brochures that include tear-off consent forms.

Also, it is wise for orthodontists to note specifics on the informed consent form. If a candidate was motivated by advertisements or the Internet, ask the patient what they understand about the procedure and document your conversation about the ads in the patient’s chart. If a candidate does not speak English, consider a translator and provide informed consent forms in their language. If a candidate appears to be very familiar with the procedure, still provide information in layman’s language, use visual props to reinforce communication, and document the specific concerns that you address with the candidate and the responsible party.

In the end, some patients may not be appropriate for treatment. As Jay Galati, DDS, MSD, of Scottsdale, Ariz, explains, “Informed consent is a two-way street. Tools used in the informed consent process are used to protect the treating practitioner and the patient.”

Building Patient Trust

As Raymond George, Sr, DMD, immediate past president of the AAO, explains, “All orthodontists should use informed consent processes in their practices. This includes informing the patient about the diagnosis, all treatment options, risks associated with no treatment, and potential problems that may occur in treatment, particularly specific issues for high-risk patients.” Whether we are talking in terms of treating a patient with undiagnosed periodontal disease, the possibility of resorption of some anterior teeth and longer treatment time for select impacted cuspids, or complexity involved in using the newer narrowed implants or temporary anchorages, building trust through the informed consent process is essential.

There are many informed consent tools that can enhance communication. Computer programs allow treatment plan dictation to be printed in both layman’s and professional dental language. Props used during diagnosis and treatment, including models, DVDs, and practice Web sites, can be powerful tools for communication. By the same token, documentation of the communications must be conducted to secure informed consent.


There is a question-and-answer period associated with informed consent. The orthodontists and appropriate staff members should ask questions throughout diagnosis and treatment planning to reinforce the communication. In the final stage of treatment planning, there may be multiple forms of documentation, noting results of Q&A sessions with the orthodontist, various staff members, the patient, and parents when necessary.

Probing questions always assist in securing an informed consent agreement. These questions may include:

  1. How would they cope with a complication should one arise?
  2. Does the patient realize the impact of treatment on daily life?
  3. Did the patient visit the practice’s Web site, and what did they learn?

The results of the communication should be documented in a formal way, including the patient and responsible party’s understanding of:

  • the diagnosis;
  • what treatment will and will not correct;
  • the risk factors and their willingness to manage complications; and
  • alternatives to treatment and repercussions associated with no treatment.


Documentation using practice templates helps to eliminate misunderstandings. As Tammy Meister, DDS, MS, PA, of St Paul, Minn, explains, “The standard AAO informed consent is comprehensive. However, today’s treatment plan may involve future implants, surgery, and cosmetic dentistry, so I often add my own notes to informed consent. In this way, patients realize what may come after or as an added fee to orthodontics.” Some technology companies offer their own informed consent forms.

Types of documentation might include the following:

  • Sketches that allow you to document the answers that the patient provides. Make sure these are dated, initialed, and placed in the chart.
  • Checklists of benefits, risks, and instructions with signature spaces for both staff and responsible parties help to avoid miscommunication when copies are given to the patient and placed in the chart.
  • Consent forms that allow patients to check off areas that they are unclear about allow the orthodontist an opportunity to clarify, date, write the results of the conversation on the informed consent, and have the form initialed by both parties. A clean consent form can then be presented for signature while one set of marked-up and clean copies can be given to the patient and the other set placed in the chart.

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In the court of law, a well-documented informed consent and other types of “Q and A documentation” can be invaluable. This documentation may also consist of patient responses to risks like calcifications, resorption, anesthesia, hitting a blood vessel, or nicking a ligament. As Ken Fisher, DDS, of Villa Park, Calif, explains, “It is extremely important today for orthodontists to have a comprehensive informed consent policy to demonstrate that the patient has awareness about every potential issue that may come up in treatment.”

Lesley Ranft is a contributing writer to Orthodontic Products. For more information, please contact