I found "A Duty to Disclose: Issues to Consider in Securing Informed Consent" by Peter Sfikas interesting—and something we have been laboring with for many years while I’ve been in practice (October JADA).
Having practiced since 1976, and as a specialist in oral and maxillofacial surgery, I have had the privilege of defending many fellow dentists in malpractice cases involving the problems associated with some of the issues to which Mr. Sfikas refers in his article. It is clear to this observer that most states with which I have dealt have the "reasonable professional" or "reasonable patient" standard. But as yet, we really have no clear definition of who those individuals are.
It is apparent to me that we need to establish a definition for these individuals. In the case of the reasonable professional standard, one could survey practitioners, from new graduates to those of retirement age, to get a broad spectrum of the various procedures we perform as dental professionals and to establish what we feel should be revealed to a patient in particular situations.
In establishing a reasonable patient standard, we would also present information to the general public aged 18 to 80 for the various procedures we do for approximately 30 to 60 minutes, and then survey them as to what they feel a reasonable patient would want to know. This would be a clear-cut way to establish those things that should or should not be on an informed consent form, therefore necessitating a very defensible informed consent in a court of law. At present, we have no scientific basis for defining those individuals and the vagaries associated with such legal terminology. This has posed significant problems in defending cases in court due to these current vagaries.
Other cases I have had to deal with or have seen in the literature are those of patients who have misrepresented their medical history in an effort to pursue malpractice actions against health care professionals. I feel it is incumbent upon the ADA, through the various state networks, to seek legislation to make it a felony for a patient to provide false information to a practitioner on his or her medical or dental history or in court testimony in an effort to obtain treatment or to pursue legal action.
A case in point was an individual who presented to our office for dental implants, and gave us a negative history for cardiac status when, in fact, he had been referred for bypass surgery three years prior to the treatment. The patient denied taking any medications, but in actuality was taking numerous cardiac medications. Vital signs were taken at the start of the procedure and found to be within normal limits. Anesthetic agents were administered intravenously, local anesthetics were administered and the implants were performed successfully.
The patient awoke from anesthesia with crushing chest pains and a severe angina attack, which could only be controlled with a nitroglycerin drip. The patient had to be transferred to a hospital for management, and was successfully treated and managed in our office and in the hospital setting. It is clear that this treatment would not have been rendered to the patient had we been aware of the patient’s cardiac status. And if the patient had had a fatal outcome, it is quite obvious to this observer that a lawsuit would have ensued.
It is also clear that, based on the information we were provided by the patient, we proceeded in a rational and judicious fashion. I have seen numerous other cases, both personally as a defense expert and in the literature on malpractice cases, where things have been misrepresented. It would be very helpful to cross-file felony charges in cases where the individual or the estate, in the case of a death, provided wrongful information, and where the patient would require a criminal attorney to deal with the charges.
I look to the leadership in the ADA to pursue these avenues so that we can be better protected and obtain better consents in our care of patients.
