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INFORMED CONSENT: Division of Legal Affairs' response
L E T T E R S
anyone to regard all dentists as concerned with accumulating wealth and avoiding paying our fair share to a society that holds us in such high regard. William Stewart, DDS, MPH Princeton Junction, N.J.
Authors’ response: While fundamentals of sound estate planning encompass the postponement and minimization of paying taxes, the other objectives of such planning, which are arguably more important, include ensuring that family members are cared for to the extent possible, and the wishes of the decedent are clear and can effectively be carried out. The need for wills and even trusts is not the exclusive domain of the wealthy. The lack of a valid document expressing the decedent’s intentions leaves a family at the whims of the estate transfer rules devised by a state legislature, and leaves beneficiaries unprotected from their own inexpert judgment in the case of minors and from someone else’s claim on family assets in the case of divorce. These planning techniques, sanctioned by the Internal Revenue Service, have the added effect of delaying or minimizing taxation, which is definitely an added bonus. Ellen Rinaldi, JD, LLM Principal Investment Counseling and Research The Vanguard Group Valley Forge, Pa.
Alisa M. Shin, JD, MGA Senior Estate and Trust Counselor Vanguard Asset Management Services Vanguard National Trust Company Valley Forge, Pa.
1364
JADA, Vol. 137
http://jada.ada.org
INFORMED CONSENT
I enjoyed Dr. Michael Glick’s August JADA editorial, “Informed Consent: A Delicate Balance” (JADA 2006;137[8]: 1060-2). Informed consent is an increasingly important topic in the dental setting. I wish to further emphasize a couple of points. Gaining a patient’s informed consent before treatment is required in all dental procedures, from the most routine to the most invasive. A properly written consent form is an invaluable document in this regard, and one that is grossly underused in the dental setting. The consent form has several roles, rooted in both ethical and legal foundations. Ethically speaking, it provides the patient with the expected benefits of a given procedure, the reasonable risks involved and the alternatives to not having the procedure performed. Outlining these factors in the written form helps elevate the quality of discussion between the patient and the provider. Invariably, the patient asks better questions, triggering better responses from the provider. This discussion helps incorporate the patient more completely into the treatment plan, allowing the patient to exercise his or her patient autonomy more fully. Legally speaking, a properly written and signed consent form is an admissible legal document. In the rough-and-tumble world of litigation, a signed consent form can be an invaluable asset to a dentist’s defense. Perhaps even more importantly, a properly written and signed
consent form may act as a deterrent to potential litigation in the first place. Finally, whether detailed case notes are employed and/or a consent form is used, neither is considered a substitute for a thorough oral discussion before treatment. Discussing the intimate details of the procedure (including risks, benefits and alternatives), as well as allowing time for patients to comprehend these facts and have their questions satisfactorily answered, is imperative. However, a consent form, while not acting as a substitute for an oral discussion, offers a legal presumption that such a discussion has transpired. Whether the perspective be legal or ethical or both, gaining a proper informed consent is a “virtue of good dental practice.” Eric Weinstock, DMD, JD Canton, Mass.
Division of Legal Affairs’ response: The American Dental Association Division of Legal Affairs appreciates Dr. Weinstock’s thoughtful letter. The Legal Division wishes to emphasize that the precise requirements for informed consent will vary from jurisdiction to jurisdiction. For some procedures in some jurisdictions, oral consent may suffice, though a written consent is preferable if there is litigation inasmuch as you will have written evidence of the consent. As Dr. Weinstock noted, the patient should consent, in some form or another, to every procedure. Members should consult with attorneys licensed to practice in their state for information on how informed consent is handled in their jurisdiction.
October 2006
Copyright ©2006 American Dental Association. All rights reserved.
anyone to regard all dentists as concerned with accumulating wealth and avoiding paying our fair share to a society that holds us in such high regard. William Stewart, DDS, MPH Princeton Junction, N.J.
Authors’ response: While fundamentals of sound estate planning encompass the postponement and minimization of paying taxes, the other objectives of such planning, which are arguably more important, include ensuring that family members are cared for to the extent possible, and the wishes of the decedent are clear and can effectively be carried out. The need for wills and even trusts is not the exclusive domain of the wealthy. The lack of a valid document expressing the decedent’s intentions leaves a family at the whims of the estate transfer rules devised by a state legislature, and leaves beneficiaries unprotected from their own inexpert judgment in the case of minors and from someone else’s claim on family assets in the case of divorce. These planning techniques, sanctioned by the Internal Revenue Service, have the added effect of delaying or minimizing taxation, which is definitely an added bonus. Ellen Rinaldi, JD, LLM Principal Investment Counseling and Research The Vanguard Group Valley Forge, Pa.
Alisa M. Shin, JD, MGA Senior Estate and Trust Counselor Vanguard Asset Management Services Vanguard National Trust Company Valley Forge, Pa.
1364
JADA, Vol. 137
http://jada.ada.org
INFORMED CONSENT
I enjoyed Dr. Michael Glick’s August JADA editorial, “Informed Consent: A Delicate Balance” (JADA 2006;137[8]: 1060-2). Informed consent is an increasingly important topic in the dental setting. I wish to further emphasize a couple of points. Gaining a patient’s informed consent before treatment is required in all dental procedures, from the most routine to the most invasive. A properly written consent form is an invaluable document in this regard, and one that is grossly underused in the dental setting. The consent form has several roles, rooted in both ethical and legal foundations. Ethically speaking, it provides the patient with the expected benefits of a given procedure, the reasonable risks involved and the alternatives to not having the procedure performed. Outlining these factors in the written form helps elevate the quality of discussion between the patient and the provider. Invariably, the patient asks better questions, triggering better responses from the provider. This discussion helps incorporate the patient more completely into the treatment plan, allowing the patient to exercise his or her patient autonomy more fully. Legally speaking, a properly written and signed consent form is an admissible legal document. In the rough-and-tumble world of litigation, a signed consent form can be an invaluable asset to a dentist’s defense. Perhaps even more importantly, a properly written and signed
consent form may act as a deterrent to potential litigation in the first place. Finally, whether detailed case notes are employed and/or a consent form is used, neither is considered a substitute for a thorough oral discussion before treatment. Discussing the intimate details of the procedure (including risks, benefits and alternatives), as well as allowing time for patients to comprehend these facts and have their questions satisfactorily answered, is imperative. However, a consent form, while not acting as a substitute for an oral discussion, offers a legal presumption that such a discussion has transpired. Whether the perspective be legal or ethical or both, gaining a proper informed consent is a “virtue of good dental practice.” Eric Weinstock, DMD, JD Canton, Mass.
Division of Legal Affairs’ response: The American Dental Association Division of Legal Affairs appreciates Dr. Weinstock’s thoughtful letter. The Legal Division wishes to emphasize that the precise requirements for informed consent will vary from jurisdiction to jurisdiction. For some procedures in some jurisdictions, oral consent may suffice, though a written consent is preferable if there is litigation inasmuch as you will have written evidence of the consent. As Dr. Weinstock noted, the patient should consent, in some form or another, to every procedure. Members should consult with attorneys licensed to practice in their state for information on how informed consent is handled in their jurisdiction.
October 2006
Copyright ©2006 American Dental Association. All rights reserved.