The dangers for dentists of avoiding a signed informed consent

Estela Vargas, CRDH.
Estela Vargas, CRDH.

Before you anesthetize your patient and begin the scheduled treatment, check that a signed informed consent is in the document center of the patient's computer chart or if a hard copy is in the paper chart.

Please don't assume that because the patient is sitting in your chair that he or she has consented in writing to the treatment. Unless the patient has been informed verbally and in writing in detail, he or she may have a completely different concept of what is being done. Studies show that people retain:

  • 20% of what is heard
  • 30% of what is seen
  • 50% of what is seen and heard
  • 70% of what they see, listen, and write
  • 90% of their actions

A patient's chances of remembering the presentation precisely as presented at the evaluation are negligible. Regarding a dispute, the "he said, she said" verbal exchange does not hold up because our memories seldom serve us accurately. Written documentation rules in law. If patients must sign a consent, they tend to remember the why and the what of the signing.

Dental professionals should respect patients' autonomy and freedom to make decisions about their health by giving them as much information as possible and the opportunity to comprehend the proposed services.

In helping dentists resolve unpaid claims for dental treatment, I have access to the document centers of each patient I am helping. I am often stunned by the lack of informed consent forms in dentists' document centers. Their document center is often bare, rarely including anything the patient signs.

This is like walking on a high wire without a net below. In questioning dentists, I received various answers ranging from "I don't do it for routine procedures" to "I didn't know it wasn't being done." Some dentists told me that they "don't believe in it" and that it scares patients away.

According to the ADA, informed consent is the basis for every treatment you propose and perform on patients. Dentists must obtain informed consent from each patient, legal guardian, or decision-maker. State laws impact whether consent can be verbal or written.

Many dentists do not obtain written informed consent for routine prophylaxis appointments and assume that the patient has implied consent. Still, the requirement for consent may vary by state law. A legal problem may arise because the provider of services should have documented that the informed consent process occurred and the outcome of the process.

The process includes what was discussed and demonstrated and that the patient has agreed to proceed with the proposed treatment and has signed the consent form(s). The informed consent process must be recorded if the patient does not wish to proceed with the treatment.

Statements are needed that the consultation covered any possible alternative course of treatment, potential risks, and what would be an outcome if the treatment wasn't performed. In the financial area of the patient's chart, details about the treatment plans, insurance estimates, and financial arrangements for account payment should be entered.

Here is an example of how having signed informed consent can resolve what could be an expensive lesson. One of my claims cases concerned a patient who had completed 15 months of orthodontic treatment and then moved out of the state without notice. The balance owed on the contract was $2,500. The patient did not contact the office to transfer her records, so her credit card was charged for an adjustment. The patient hired an attorney and reported the practice to the Better Business Bureau because she wanted the total funds she had paid for her treatment refunded. She claimed that the dental practice sold her account to a collection agency and had used fraudulent business practices.

After completing thorough research and chart audits of her account, it was discovered that the patient had signed treatment consent forms and a written and signed financial contract with the orthodontic practice. The practice had yet to turn her over to a collection agency but was trying to contact her about the treatment and the account balance. Because of the documentation, the account was resolved with an amicable outcome for all parties.

Understanding that sufficiently executed informed consent does not protect a clinician against malpractice claims is essential. If a patient feels they have been wronged and treated poorly, they must prove the four elements of malpractice, which are:

  1. The healthcare provider must provide competent care.
  2. There was a breach of the duty to provide competent care.
  3. An injury occurred.
  4. The injury directly resulted from a breach of the standard of care.

Courts have held that informed consent is irrelevant to the question of malpractice. All of this comes into play when resolving unpaid dental insurance claims and unpaid patient balances.

Suppose the treatment is in dispute because the patient is upset that what they received is not what they expected or was negligent or that the insurance plan denied payment of services that the patient was led to believe were covered, which adds up to delays in adjudication of claims and now may require lengthy appeals. The results are delay or loss of revenue, affecting your bottom line and peace of mind.

Estela Vargas, CRDH, is the founder and CEO of Remote Sourcing, a dental insurance billing and revenue recovery service. She is a graduate of Miami Dade College's dental hygiene program. Vargas' extensive background in the clinical arena of dentistry is coupled with her experience as a practice administrator and business executive. 

The comments and observations expressed herein do not necessarily reflect the opinions of, nor should they be construed as an endorsement or admonishment of any particular idea, vendor, or organization

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