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Gain adequate consent to avoid claims

12 February 2019
A claim for compensation due to alleged negligence is often made because the patient has unrealistic expectations about the treatment or outcomes. Even though lengthy discussions may have taken place, unless this is clearly documented in the clinical records, that patient may succeed in their claim. Therefore it is recommended to fully document every discussion in the clinical records to validate the patient’s consent. Signed consent forms can be helpful, and sometimes mandatory,but the forms should be specific to the individual treatment planned, rather than an all-encompassing, general consent form.

TIPS TO AVOID A CLAIM

Discuss and fully document in the patient’s record:

• the purpose of the procedure
• the nature of the treatment (what it involves and timescales)
• what the treatment will achieve (taking into account the particular concerns of the individual patient)
• any risks, limitations and possible complications (including rare but significant complications)
• alternative treatments and how they compare
• cost
• post-treatment issues including possible time-off work or the need for future treatment.

CASE STUDY: UNRECORDED DISCUSSION LEADS TO CLAIM FOR NEGLIGENCE

A clinician examined a patient who asked whether something could be done to replace the residual tooth 15. The patient had browsed through the literature in the waiting room about implants and bridgework and discussed the various options with the dentist.

The dentist recalled fully discussing the concept of an implant-retained prosthesis and the cost for such a procedure. He also advised his patient that a three-unit bridge using teeth 16 and 14 as abutments was another alternative. The patient decided to go ahead with the bridgework because it would be quicker and less expensive.

The dentist made a three-unit bridge as agreed, but unfortunately the patient found it difficult to tolerate because he was getting food caught underneath it. By mutual agreement the bridge was removed,before making a crown and a porcelain inlay to restore the distal and mesial abutments respectively.

The dentist carried out some further preparation on tooth 16 and fitted the crown at the following visit. Unfortunately the patient experienced pain from the crowned tooth, which subsequently had to be root-treated.

NEGLIGENCE CLAIM

The patient instructed a lawyer to make a claim in negligence against the dentist alleging that he had not warned of the risks of preparing the tooth for a coronal restoration,nor had he fully explained the advantages of having the space restored with an implant.

Although the dentist recalled discussing the various options and material risks with the patient, there was unfortunately nothing entered in the records to support his claim that the consent process had been carefully completed. Given there is a legal and ethical obligation to create and retain appropriate records, the very absence of a suitable record in the context of a claim is likely to give rise to an overall impression of poor/substandard care and leaves a court or a decision-maker with an unfavourable view of a clinician’s practice, whether that is fair or not. Similarly,in the absence of a good record, the decision on the standard of care may well depend upon the reliability and credibility of the parties and their recollection of the incident.

In view of the lack of supportive records, it was decided it would be difficult to defend the claim and a settlement was effected to compensate the patient for the destruction of the abutment teeth and the costs involved for further restorations of these teeth in the future.

Learning Points

  • Unless conversations and warnings are recorded contemporaneously in the notes, they may well be deemed not to have occurred when a problem subsequently arises and the patient presents a different version of events to that presented by the dentist.
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These case studies are based on real events and provided here as guidance. They do not constitute legal advice but are published to help members better understand how they might deal with certain situations. This is just one of the many benefits dental members enjoy as part of their subscription. 
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