Climbing the risk-management ladder

One of the biggest problems facing orthodontists in the legal arena today is defending a claim for lack of informed consent. Breaking down this legal doctrine into its individual elements is critical to understanding the risk-management application of this basic fundamental legal, ethical, and practice-management principle.

What is Consent?

First, realize that there is a difference between consent and informed consent. To put it into simple terms, consent is a threshold issue. In other words, before you can obtain a patient’s informed consent to render any specific treatment, you first must obtain that patient’s general consent. For a patient’s consent for treatment to be valid, three criteria must be met. First, the consent must be given voluntarily. Second, the person granting the consent must be of legal age. Finally, this person must be of sufficient mental capacity. Let’s look at each of these a little more closely.

Consent Issues

The issue of a patient’s mental capacity is usually restricted to the elderly and to those with easily recognizable mental deficiencies—situations we rarely encounter in clinical orthodontics. However, take, for example, the patient or parent who shows up at the consultation visit acting in a manner that would lead you to believe that this person is impaired secondary to drug or alcohol abuse. If someone appears irrational during the consultation, the issue of that person’s capacity to grant consent—for himself, herself, or for others—may come into play.

The more common problems relating to consent fall into the other two categories. The legal age issue arises in two contexts. The first instance occurs when the patient is a minor. Since infancy generally precludes the patient from being able to grant consent, you must obtain the legal guardian’s consent to treat that child. If grandma, an aunt, the housekeeper, or even the noncustodial parent accompanies the minor to your office, technically, they cannot grant legal consent to allow you to render treatment. You can obtain consent by phone, letter, or health care proxy as long as the appropriate party grants it to you.

A second example arises when you are treating a minor and, right in the middle of orthodontic therapy, the patient reaches the legal age of majority. The patient then looks at you and says, “Take my braces off.”

Mom retorts, “Over my dead body.”

What do you do? The patient, not Mom, has the final say. Leaving the braces on after the patient requests their removal is technically a battery, defined as unauthorized, harmful, or offensive contact with another. It doesn’t matter who pays the bill—money has nothing to do with it.

Finally, whether the consent granted was voluntary or not may turn on a patient’s claim that they were mentally coerced into accepting treatment. This can arise when patients are told something like, “If you don’t undergo orthodontic therapy, you will lose all of your teeth from periodontal disease, suffer TMD problems,” etc. These types of remarks should not be made if there is no clinical evidence to substantiate them or if they cannot be supported by scientific evidence. Nor should you imply that a patient’s self-image or facial aesthetics is such that they will be socially ostracized or scorned because of their “crooked teeth.” You cannot make statements that “bully or guilt” patients into accepting orthodontic treatment.

Standards of Consent

Once you have received a patient’s consent, you must then obtain that patient’s informed consent regarding your exact ministrations. Patients must be told, in a language they can comprehend, such things as what the problem is, what you are going to do, how you are going to do it, how long treatment will take, and how much it will cost. Sounds simple, right? Maybe, but maybe not. Let’s take each item separately. But before we do that, there’s just one more thing you have to know: Which standard do you use for disclosing this information? 

There are basically two standards for disclosure, and which one you use depends upon which state you practice in. The more traditional standard is the “professional-based” one. Using this approach, the only information you need to disclose to your patients is the information that would usually be disclosed by other orthodontists under the same or similar circumstances. In other words, the orthodontist decides what and how much to tell the patient. The more modern approach is the “patient- need-to-know” standard. The idea here is to give the patient all of the information that a reasonable person in the patient’s position would deem material to making a decision to accept or reject the proposed treatment. From an ethical perspective, the patient-based standard is the preferred alternative.

Coming back to the individual elements, you can see that patients who have a problem with English should be spoken to in their native tongue so that they can understand what is being said.

Next, speak plainly. To tell your patient that they have a retrognathic mandible and aplasia of tooth No. 7, and that the recommended treatment is a sagittal split osteotomy in the mandible with an implant prosthesis in the maxilla, may be technically correct. However, it is infinitely more comprehensible to say that the patient’s bottom jaw is too small, that the patient is missing an upper front tooth, and that the best way to solve the problem is by surgically bringing the bottom jaw forward and replacing the missing tooth with an implanted fake one.

Replacing English with Dentalese is a very common mistake. Many practice-management experts have recommended that your treatment coordinator, a nonorthodontist, take over the consultation duties, as he or she is less apt to fall into the language trap. The information can be given by anyone in the office and in almost any medium. Each of us should develop our own style of information transmission. Some will go high-tech via computer imaging and prepackaged interactive CD programs or proprietarily produced videotapes. Others will find that educational brochures or forms work best. For some, a good old-fashioned conversation with the patient is the way to go. How it is done and by whom is irrelevant; the key is to ensure that, regardless of how it’s done or who does it, the patient or parent understands the information being transmitted.

Whatever treatment you are proposing may be clear-cut in your own mind, but you must learn to put yourself in the patient’s position. If any physician were to recommend a certain procedure to be performed on you, I’m certain that, being the intelligent person you are, you’d want to know what your other treatment options or alternatives were. You would want to know what the risks are for each one, what the consequences of each one are, and what limitations exist. Why should our patients be different from us? They aren’t; and just because we are talking about teeth doesn’t make it different. Patients need to be apprised of all viable treatment alternatives, even if you don’t perform these procedures. Remember, it’s their bodies we are invading; only they can give us the right to trespass in any given way.

Patients also have the right to know what will happen if they choose not to undergo treatment, for in many cases, this is—at least from their perspective—another viable alternative.

How long treatment will take and how much it will cost are also factors involved in obtaining a patient’s informed consent. It is a common, presumptive mistake for the orthodontist to make unsubstantiated judgments as to what patients can or should be able to afford. The amount of time that treatment will take may be of major significance to some, while far less crucial for others. You should not offer a low estimate of how long treatment will take in the hope that the patient will not be turned off. We should not be engaging in paternalism by believing that we “know” that the treatment we are recommending is “the best thing for the patient.” The reason for this is that often our best intentions are not the best thing for that particular patient due to financial or temporal concerns.

Finally, the patient must have the opportunity to ask questions and have you answer them. Remember, you don’t give informed consent. The patient grants you his or her informed consent for the treatment being proposed and/or rendered. In other words, it’s a two-way street: Orthodontists must provide their patients with sufficient information to allow them to accept or reject the course of therapy being recommended. 

Documenting Consent: The Risk-Management Ladder

What is the best way to document that you have obtained the patient’s informed consent? While a few states require a signed document, think of documentation as a risk-management ladder. The higher the rung on the ladder that you stand on, the greater the risk-management protection. Videotaping the consultation would be the highest rung on the ladder, with audiotaping being the next rung down. Both of the above offer indisputable protection to prove what was said; however, they also prove what was not said.

The third rung down is to have patients write in their own hand what was recommended and what the risks and alternatives are. Once patients have done this, they can never claim that they did not understand what you said to them; after all, they wrote it.

Next, the most commonly used tool is to distribute a printed pamphlet or form that is acknowledged via the patient’s or parent’s signature.

Following that would be a notation in the patient’s chart that this form or booklet of information was given to patients, but without their signature or initials. The next rung down is documenting in the chart what information you told patients or parents, again evidenced by their signature or initial. The next rung down from that is making the same entry without such acknowledgement.

A commonly accepted legal presumption holds that if something was written on the chart, it was said or done. The corollary also applies: If it was not written on the chart, then it was not said or done. Nearing the bottom of our risk-management ladder, you might note on the chart that the risks and alternatives were discussed without actually elaborating on the discourse. Finally, the last rung would be a chart devoid of any evidence related to a consultation discussion, making any dispute come down to your word against the patient’s.

Additional Consent

Many orthodontists err by believing that if informed consent was obtained at the onset of treatment, then their patients no longer have to be informed if negative sequelae start to occur. If, in the middle of treatment, you discover root resorption, periodontal disease, or decalcifications are just beginning, you know that at some point a decision may have to be made to discontinue active treatment prematurely—even if the treatment goals have not been realized. Who makes that decision? If you say it’s the orthodontist, you’re acting paternalistically. If you say it’s the patient, how are they to know how far to go before calling it quits? And what are the ramifications?

It should be obvious that the process of informed consent is an ongoing give and take between the orthodontist and the patient, based on what is occurring at any given point along the treatment timeline. Ideally, informed consent should be continually obtained, allowing you to either continue on with treatment or cease treatment if consent is withdrawn and the patient decides to terminate treatment. No matter what form it takes, making the decision to start or continue orthodontic treatment is dependent upon the sufficiency of the information provided.

Next month’s issue will contain several informed-consent documents. Feel free to use them in their entirety or adapt them as you see fit. Now that you understand the legal principles behind the doctrine of informed consent, implementing how you plan to do it is the easy part.

This is Part 1 of a two-part article. Part 2 will appear in the June issue.

Laurance Jerrold, DDS, JD, is the dean and program director at Jacksonville University School of Orthodontics. He can be reached at (904) 256-7852 or [email protected].