Great care needs to be taken to avoid 'talking a patient' into any dental procedure.
When an elective decision is taken to provide interventive treatment for teeth which are healthy and symptomless, there are particular dento-legal risks which are sometimes overlooked. This article looks at the critical steps that need to be taken before commencing treatment, in order to avoid problems after the event.
When an elective decision is taken to provide interventive treatment for teeth which are healthy and symptomless, there are particular dento-legal risks which are sometimes overlooked. This article looks at the critical steps that need to be taken before commencing treatment, in order to avoid problems after the event.
Consent
The consent process is a critical part of the provision of any treatment, and it has become one of the most important and topical medico-legal issues, in dentistry, as well as in medicine. It is the duty of the clinician to explain each of the various treatment possibilities, what they involve, and how they compare in terms of treatment duration, costs, etc. It is important that this comparison should include the risks, limitations and disadvantages of each of the treatment alternatives, as well as their benefits and advantages. There is sometimes a temptation to present the patient with a limited range of options because the clinician has a personal preference for particular techniques. If the range of options offered to the patient is limited in this manner, then the way is left open for the patient to argue, after the event, that they would never have agreed to proceed with the treatment if it had been explained to them that another possible treatment option existed. They would have chosen it, if only it had been offered to them!
It is very common for patients to mount a similar argument if the benefits of a particular procedure had been explained to them in glowing terms, without any corresponding emphasis on the risks, limitations and disadvantages of the treatment in question.
A particular danger exists when the suggestion of elective, interventive and irreversible treatment comes direct from the clinician rather than in response to a patient's enquiry. It is obviously desirable and constructive that patients should be made aware of what dentistry can offer them - especially since many patients have little or no awareness of what is possible or available - but great care needs to be taken to avoid 'talking a patient into' any procedure. The same careful communication exercise needs to be followed, completing each stage of the all-important consent process in turn, before proceeding with any such treatment. Explain all the options (including the option of doing nothing at all) in a fair and balanced way. The advantages and disadvantages of the proposed treatment should be discussed (if appropriate) and the patient should be given the opportunity to ask questions.
Literature
Promotional material and advertisements used by a practice are sometimes produced by patients' lawyers to demonstrate the messages that the practice is giving (or not giving) to its patients. Well written information sheets are a powerful adjunct to any face-to-face discussions, and are a convenient and cost effective means of ensuring that all the key messages are conveyed to the patient. Avoid making claims that cannot be substantiated, and try to present a balanced picture. If any diagrams or illustrations are used (eg colour photographs) try to ensure that they do not raise patients' expectations to an unrealistic level that cannot be matched by the treatment itself. The material should emphasise that there will usually be several alternative treatment options, and rarely just one, and should make it clear that the clinician's role is to provide all the relevant information, leaving the patient to make the final decision.
Is it reversible?
In risk terms, a distinction needs to be drawn between elective treatment that is reversible, and that which is irreversible.
Irreversible treatment carries a much greater risk, even in situations where other clinicians would readily accept and agree the logic of the treatment approach, because this overlooks the patient's central role in the decision-making/ consent process. Examples of this might be:
- Elective root canal therapy prior to fixed restorations.
- Elective removal of symptomless third molars or retained roots.
- Elective provision of certain treatments sooner than might otherwise have been justified, when the treatment is being provided under general anaesthesia (usually to avoid the need for a second GA ).
- Elective preparation of previously intact (or minimally restored) teeth to receive crowns, bridges, veneers, etc.
- The decision to remove most or all of a patient's remaining teeth and to provide dentures.
On the other hand, the provision of adhesive restorations (such as glass ionomers) without prior cavity preparation or removal of any tooth tissue, perhaps as part of a broader strategy to deal with cervical tooth tissue loss through toothbrush abrasion/ erosion, is a good example of 'reversible' elective treatment.
Bleaching/tooth whitening is another technique which has the benefit of avoiding aggressive tooth preparation, with all the attendant risks and disadvantages in both the short-term and long-term.
Fissure sealants and sealant restorations are further techniques of this nature. Even these 'reversible' techniques can carry risks which need explaining to the patient.
Orthodontics itself falls somewhere in-between, but the elective extraction of healthy teeth that might be part of an orthodontic treatment plan, will sometimes become a point of contention when the outcome is not what the patient had hoped for, or perhaps more importantly when treating children, the parent or guardian, had been led to expect.
Records
As always, the clinical notes are an important element of risk management, since good records are the key to being able to demonstrate that the patient had been fully informed about all the relevant treatment options, and was given time to think about the advantages and disadvantages of the various alternatives, and to ask questions, before taking the final decision to proceed.
It should be clear from the records what discussions took place - including the fact that the patient initiated the discussions, if applicable - what problems were identified, what alternatives were discussed (and in what terms), and a note should be made of any information sheets or leaflets given to the patient and/or any other means - such as audiovisual aids - by which the relevant information was communicated to the patient.
The more 'elective' the treatment, the more intrusive/interventive/ irreversible the treatment, the greater the risks of an adverse outcome, or the consequences if this were to happen, then the more critical it becomes to have full and meticulous records available. These might usefully include study models, and clinical photographs in the case of elective 'cosmetic' treatment.
A valuable addition to the clinical notes themselves, which can form a pivotal part of the overall record, is any correspondence between dentist and patient. A sensible approach is to write a letter to the patient, confirming the discussions that have taken place and setting out the treatment options and their relative cost. This is an opportunity to remind the patient in writing of any potential risks/limitations and to emphasise the need for the patient to be quite sure in their mind that they wish to proceed, before doing so. Some clinicians express the fear that this approach will create doubts in the patient's mind, leading them to defer or refuse treatment, or to go elsewhere to someone who paints a rosier (if one-sided) picture. These concerns are understandable, but if there is a basis of trust and confidence between patient and dentist, most patients will appreciate the honesty and professionalism of presenting both sides of the argument in a fair way, and in these circumstances even the most adverse of postoperative outcomes rarely leads to complaints or litigation.
The far greater danger is that of patients feeling that they were steered towards a specific treatment option, without being made aware of the whole picture, of other available alternatives, or even of the possibility of obtaining a second opinion before reaching a final decision.
If a dissatisfied patient is left suspecting the motives of a clinician in recommending a particular treatment option (usually where a significant cost was involved), the seeds of a formal complaint or other action are sown.
A short distance down this road, the clinical records could well become important in establishing what was and was not said before the elective treatment was provided.
If the totality of these records demonstrates that time and trouble was taken to assess the situation, to consider the options carefully and to explain the alternatives to the patient, the chances of defending a subsequent claim or complaint are greatly increased. The same is true of situations where it is clear that a patient was invited to take their time in considering the information provided to them, and/ or to seek independent opinions from others if they wish to do so. Conversely, if the records give the impression that the patient was rushed into a specific treatment option without pausing to consider the other available alternatives, then the situation becomes much more difficult to manage.
Whenever you are considering the provision of any elective treatment, think carefully about any potential adverse outcome and the consequences for this particular patient. A patient who is persuaded to have a symptomless third molar removed, will not thank you if they finish up with nerve damage.
If the resulting sensory deficit is sufficiently serious to affect the patient's work, leisure pursuits or wellbeing, they will take a lot of persuading that it was a good idea for you to have suggested the extraction.
Similarly, a patient who was talked into having a fixed bridge provided to fill a space that they had happily lived with for many years, will not be impressed when one of the retainers becomes non-vital and needs RCT soon afterwards, or if their occlusion is altered, leading to TMJ/muscle pain or dysfunction.
Surprisingly enough, it is not uncommon for problems to arise when the clinician suggests to a patient that they can replace a removable denture with a fixed bridge, or with several implant-retained crowns. Initially, many patients will be attracted to the idea of not having to wear a denture, and if the patient is happy with the final outcome, all well and good. But if the patient has persistent problems with speech, appearance or function, or pain/sensitivity during or after the treatment, or if the patient is promised benefits which don't materialise, then a significant claim can result.
Such a claim invariably includes a demand to be compensated for the unnecessary pain/suffering/ inconvenience of having the elective procedures undertaken at all. The patient will often argue that they were quite happy as they were, and would never have proceeded with the treatment if the dentist hadn't suggested it, or if the dentist had spent as much time explaining the potential drawbacks as he/she had done in persuading the patient of how much better the proposed treatment would be than the patient's existing denture.
Even worse is the situation where the clinician explains that the proposed treatment is the 'only option' when in fact it is one of a number of elective options in treatment planning, especially if one of those options may be to do nothing. The 'I see a space, you must have an implant or bridge to save your teeth/occlusion' scenario has no place in (elective) dentistry, unless the statement can be supported by a body of evidence that also discusses all the options!
Summary
There are many occasions in clinical dentistry where elective treatment is considered or provided. It is important to understand the special nature of the dento-legal risks which accompany the provision of any treatment which does not, strictly speaking, need to be provided at this moment in time.
The key is to inform and involve the patient in the consent process, and to resist the temptation either to guide a patient too forcibly or too quickly towards a specific treatment option, or to allow a patient to persuade you to carry out elective treatment against your better judgment.