Transcription:
Closed Claim: Lack of Informed Consent Compromises the Defense

VO: This podcast is intended to provide information only on certain risk management topics, and is not to be construed as providing legal, medical, or professional advice of any form whatsoever. Because federal, state, and local laws vary by location, nothing in this podcast is intended to serve as legal advice or to establish any standard of care. Legal advice if desired, should be sought from competent counsel in your state.

Dr. Julie Goldberg: Hello and welcome back to ForCast, the podcast Brought to you by Fortress Insurance, the leading professional liability insurance coverage provider for dentists. Not familiar with Fortress yet? Get in touch with Fortress and find an agent by visiting our website at dds4dds.com. That's DDS, the number 4, DDS.com.

I'm Dr. Julie Goldberg, the Education Program Developer at Fortress. For those listeners who've been tuning into ForCast, welcome back and thanks for listening. And for those of you who are new, welcome to ForCast. We are so glad you've joined us. In each episode, we invite guests to share information relevant to the profession. If you've missed an episode, be sure to check out our other recordings at your convenience.

In our next two episodes, we welcome Kim Gensler, Director of Claims at Fortress. Kim will be discussing some of the lessons learned from closed Fortress professional liability claims, and help our listeners understand how analysis of these closed claims might assist in promoting optimal patient outcomes, improving the defensibility of a claim or avoiding a claim altogether. Welcome to ForCast, Kim.

Kimberly Gensler: Thanks so much for having me, Julie.

Host: Kim, in our prior episodes, we've learned some basic information about what to look for in malpractice insurance, how to assemble a professional team, and how the litigation process generally proceeds. In our next two episodes, you will be applying these topics to clinical scenarios. Isn't that right?

Guest: Yes, that's correct, Julie. So today, we will use an actual closed Fortress claim to highlight the benefits of engaging patients in the informed consent process, educating patients about the treatment plan, and documenting the basis for clinical decisions. And in a future episode, we will discuss some of the lessons learned from a lawsuit involving a wrong tooth extraction.

Host: It sounds like we have a lot of ground to cover, Kim. So, let's get started.

Guest: Sure. But before we start, Julie, I want to note that while this summary is based on an actual closed Fortress claim, the facts have been de-identified and adapted for educational purposes. This is a claim of a woman in her 50s who presented to a Fortress-insured dentist for evaluation of diffuse mouth pain.

During the consultation, the patient stated that if she needed extractions, she only wanted four of her seven remaining teeth removed. There was no clinical documentation from the dentist as to why the patient wanted to save her three remaining teeth. Based on the clinical exam and the imaging, the insured prepared a treatment plan recommending extraction of the seven remaining teeth to prepare the patient for full dentures. However, there was no note in the chart to indicate whether the dentist discussed the treatment plan with the patient.

Host: You know, while it's not uncommon for providers and patients to have different opinions on the best treatment plans, I can appreciate the importance of having these discussions with a patient. What happened when the patient returned for the extractions?

Guest: When the patient returned, the insured did not review the treatment plan for extraction of all remaining teeth with the patient or have the patient sign a consent form for the extractions. The seven teeth were extracted with no reported surgical complications, and the patient's recovery was uneventful. Immediately after the extractions were completed, however, the patient expressed concerns that seven teeth had been extracted despite her request to limit that number to four.

Host: So even though there were no complications with the extractions, we know that this patient filed a lawsuit. What were the allegations in this claim?

Guest: The patient filed a lawsuit alleging professional negligence or medical malpractice, not regarding the performance of the extractions themselves, but based on the lack of informed consent, given that three of her teeth were extracted without her consent.

Host: In a prior ForCast episode, we learned that in the course of litigation, the discovery process involves the exchange of written records among the parties and sworn oral testimony, also known as deposition. What was identified during the discovery phase of this lawsuit?

Guest: Review of the dentist records revealed that there was no clinical documentation to support the indication for the seven extractions. Likewise, there was no documentation to support any kind of informed consent process.

Host: Kim, well, I believe that our audience knows generally what an informed consent form is. Would you please give us an overview of the actual process?

Guest: Absolutely, Julie. The informed consent process is the method through which a patient makes an informed decision on whether or not to proceed with a proposed treatment based on an understanding of the indications for treatment, as well as the risks, benefits, and alternative to the treatment.

Generally, there are three steps in this process. The first step is a conversation between the treating doctor and the patient. It's recommended that this conversation be unique to each patient and their clinical condition, and include the diagnosis, the proposed treatment, and the anesthesia options, as well as the benefits, risks, and potential complications of treatment and anesthesia and any treatment alternatives, which includes no treatment.

Host: Now, Kim, you've mentioned that this should be a conversation between the treating doctor and the patient. I know many dentists allow staff to introduce this information to patients, sometimes using videos or other educational resources. Then, as the treating provider, they will follow up so they can address any questions the patient might have. What are your thoughts on this approach?

Guest: While staff and supplemental educational materials may support this step, it is important that the treating dentist to have the conversation with the patient. It sets the foundation for the second step in the process where the patient signs a consent form. In the second step, the patient signs a consent form to acknowledge their understanding and their acceptance of the information discussed. Keep in mind that the patient should sign the form after the informed consent discussion, but before the procedure or any anesthetics, mind-altering medications or narcotics are administered.

Host: That makes sense, Kim. For some procedures, there is a lot of information to relay. The discussion and subsequent written information could help a patient fully understand the procedure and the risks. So, what is the third step in the process then?

Guest: The third and final step is documentation in the patient record, documenting the discussion with the patient, the patient's verbal acceptance of the treatment plan, and that a consent form acknowledging the risks, benefits, and alternatives of treatment has been signed, will memorialize the efforts made to educate the patient. It's also helpful if the practice documents any questions the patient asks during the process. Without this documentation, when a chart is evaluated later in the context of a claim, it will give the appearance, as we see in our case, example, that the doctor did not make any effort to obtain consent.

Host: Fortress utilizes a panel of practicing dental professionals as an important part of the claims review process. What did the panel's evaluation of this claim reveal?

Guest: Even though the Fortress Claims Committee did not have any concerns regarding the clinical care that was provided, they recommended that this claim be settled rather than go to trial. Given the absence of documentation we've been discussing, it was difficult to support the clinical decision to extract the remaining seven teeth over the patient's request for only four extractions. Likewise, there was no clinical documentation and no signed consent form to support that the patient was made aware of the risks, benefits, or alternatives to the procedure. The clinical documentation deficits created significant hurdles for the defense and the insured consented to settle this lawsuit.

Host: Thank you for that claim summary, Kim. What do you believe are the broader lessons for our listeners to learn here?

Guest: I believe this claim highlights the central roles that patient communication and clinical documentation play when providing patient-focused care. For example, if the clinical documentation from this dentist had included the indications for the seven extractions and if the dentist had educated the patient about why the 7 teeth needed to be extracted and documented the effort, this scenario may never have escalated into a claim. The same is true if the dentist's clinical documentation had supported that the patient participated in the informed consent process prior to the extractions.

Host: Are there any other lessons from this claim for our audience to consider?

Guest: Yes, I think so. Lack of informed consent is a common allegation seen in many medical professional liability claims, including those for Fortress policy holders. This allegation can be the focus of a patient's lawsuit as it was in this closed claim or as an add-on, if you will, to the pleadings.

While many providers may think that having a patient sign a consent form is all that is required, obtaining informed consent is truly a process involving a discussion between the treating doctor and the patient about the risks, benefits, and alternatives to a proposed treatment, as well as clinical documentation and the patient's signature on an informed consent form, noting acknowledgement of the discussion. Remember, the documentation of this process can be used to reinforce and memorialize that this discussion and acknowledgement occurred.

Host: Thanks, Kim. I'd like to share with our listeners that Fortress offers multiple patient safety and risk management resources to assist in reducing the incidence of adverse events. Specific to countering allegations which may arise from a lack of informed consent, fortress offers dozens of procedure-specific informed consent forms on our website and a video on the Fortress YouTube channel, which provides a helpful recap regarding the informed consent process. Thank you, Kim, for joining us today and sharing your insight.

Guest: Thank you so much for the opportunity. And I agree, Julie, the resources and a doctor's clinical documentation can be very helpful in supporting the efforts that providers make to educate their patients.

Host: Kim will be returning for our next episode to discuss a wrong tooth extraction claim and highlight for our audience some strategies which may prevent this type of claim.

At this point, I'd like to thank our listeners. We appreciate you taking time out of your day to tune in to ForCast. More information about Fortress can be found on our website at dds4dds.com. That's DDS, the number four, DDS.com.