Dento-legal Considerations in Implant Treatment
Trying to understand the legal system can be similar to trying to decipher a foreign language. Ignorance of the legal requirements for dentistry, and specifically dental implants, unnecessarily exposes today’s dental practitioner to malpractice suits that are very costly to defend – both financially and emotionally.
Nearly every Oral Surgery and Periodontology text published since 1995 contains some discussion of dental implants. Solicitors representing patients who have suffered iatrogenic tooth loss have embraced implants because they have been accepted in many cases as the best alternative for subsequent retreatment involving tooth replacement. The wealth of dental literature supports implants as a well-established form of long-term dental restoration, as reliable as bridges and preferable to removable appliances.
Duty of Care
A dentist has a duty to obtain the informed consent of a patient before providing or declining to provide treatment. Informed consent can be simply defined as a process of education and communication that enhances the dentist-patient relationship and prepares the patient for the potential of a less-than-ideal outcome. The dentist has a duty to disclose all material information to enable the patient to make an informed decision regarding the proposed operation or treatment. “Information is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if given the information, would be likely to attach significance to it…” . This includes information about risks, complications, and the chances of success inherent in the treatment being discussed. When a procedure inherently involves known risk of serious bodily harm, it is the dentist’s duty to disclose the possibility of such an outcome and to explain, in lay terms, the complications that might possibly occur.
The failure of the dentist to inform the patient as stated previously, before obtaining consent for a procedure or treatment, is likely to be found negligent. This duty of informed consent includes the doctrine of informed refusal . Put simply, a dentist has an obligation to advise the patient of the ideal treatment plan, not just the ones he or she thinks the patient can afford, and advise of the risks and benefits of the alternatives of those plans. Such discussions should be documented in the patient’s records. Today, a dentist can be liable for problems experienced by a patient who either was not told of a potential alternative treatment or was not told the risks of refusing a recommended treatment.
In the past, when a patient lost a tooth due to either trauma or decay, the traditional replacement was a three-unit bridge. This required preparing the two abutment teeth with the risk of endodontic damage. Bone atrophy would occur over time, and good oral hygiene practice would often necessitate the use of a floss-threading device. Each subsequent replacement of the bridge increased the risk of endodontic complications and further loss of tooth substance.
Today, a patient can have a dental implant with minimal risk to adjacent teeth and potential bone preservation with better oral hygiene.
Where appropriate, implants must be offered to the patient. If the patient declines implant treatment and chooses a more traditional restoration, the prudent practitioner should obtain and document informed refusal, just as one would document informed consent. Many practitioners are not sufficiently comfortable or familiar with implants to discuss them with their patients. However, practitioners can no longer avoid the discussion of implants for these reasons as the law requires that an appropriate discussion of alternative treatments as well as the risks of treatment takes place.
A patient attended a general dentist for replacement of a broken upper central incisor which was endodontically compromised. The dentist recommended extraction and replacement with a three-unit bridge, spanning the upper right central to the upper left incisor. One of the proposed abutments was a virginal tooth, while the other had mesial and lingual composites. There were no discussions about an implant as an option.
Subsequently, a bridge was placed spanning the upper right central to the upper left lateral. Four months later, endodontic complications ensued in the upper lateral incisor necessitating root canal therapy. Unfortunately, a file fractured during treatment. The fragment was not able to be removed by the dentist, and in the attempt to do so, he pushed the file fragment through the apex. The patient was advised and told that the area would be monitored, but no record of this was made on the card.
Three months later, the patient experienced severe pain and saw another dentist. This second dentist referred the patient to an endodontist who performed apical surgery. About the same time, the patient contacted a solicitor and subsequently learned that she could have had an implant and avoided the need for any treatment of the upper lateral incisor. A Statement of Claim resulted, and the case was settled out of court on the basis of treatment complications arising and a failure to advise of these complications or the alternative of dental implants.
Relevant to the above case, the law recognizes that a dentist has a duty to refer to a specialist, if under the circumstances, a reasonably careful and skilful practitioner would do so. A failure to fulfill such duty may lead to a finding by the courts of negligence.
Several studies have found that patients can suffer from genuine amnesia regarding pretreatment discussions, including those involving informed consent . Modern technology in the form of computers with their word-processing programs and e-mail have made consent forms easy to use and obtain, so much so that they are seen by some to be the “standard of care.” However, in the author’s opinion, the consent form is not a practical or legal substitute for the discussion that should take place between the dentist and the patient. That duty cannot be delegated to a form nor to staff who are not licensed to perform the treatment at issue. In the words of Prof. John deBurgh Norman, “Consent is a process, not a form.”
In fact, overseas experience suggests that patients seldom prevail in claims of lack of informed consent where the record of the consent discussion is well documented and a signed, dated, and witnessed consent form utilized . A standard consent form for implant treatment might include the following:
“I have read all the written material provided and I understand the advice contained. I hereby give my consent to having the discussed implant treatment. I accept all risks involved in such procedures. I have had the potential risks and complications fully explained to me, and I have been given an opportunity to ask questions. All my questions have been answered to my satisfaction. I understand that, should I have any further questions after reading the brochures and documents provided to me, I can contact my surgeon prior to surgery.”
ADA NSW members can download a couple of examples of more complete implant consent forms at the Member’s Portal www.adansw.com.au.
The Implant Team
Good risk management for dental implants suggests that, in an ideal setting, implant teams must be formed and well organized before implant patients are taken on. Published guidelines  state that “cooperation should exist between the prosthodontist and surgeon during the assessment, and treatment planning be maintained through the various stages of treatment, and prevail through the follow-up care of the patient.”
Roles must be clearly identified. Informed consent should be a process that starts with the implant team and results in obtaining a reasonable and well-documented consent via patient education during consultation . The team members should share documentation of the informed consent process used by each member. In that way, the patient will experience consistency in discussions, which will reflect highly on the practitioners concerned and give the patient confidence in what is being proposed.
The general practitioner must recognize his or her limitations and be prepared to consider referral to a specialist or dentist with more experience or training. For instance, a court is likely to view the use of a sinus lift or nerve repositioning procedure to be outside the area of training and competence of a general practitioner . It may be said that few individuals have sufficient training, experience, and expertise in both the surgical and prosthodontic disciplines to provide a comprehensive range of treatment necessary to rehabilitate the patient and deal with complications .
Indeed, Statements of Claim sighted by the Dental Defence Advisory Service (DDAS)* have included allegations that the patient was not given the opportunity to consult with a specialist through referral. In some cases, this allegation is justified if, as the case progresses, it is obvious to the court that the practitioner has acted outside their area of experience and training. “Having a go” is not likely to be viewed sympathetically by the courts. In a recent paper, David Sykes opined: “Placing oneself in the position of the patient is always salutary. The rhetorical question ‘Would I like my mother to be treated by myself in this case’ can be useful” .
It is often far more prudent for the inexperienced practitioner, who is new to implants, to seek out a mentoring relationship with a more senior and helpful colleague. In the author’s experience, most experienced practitioners are more than willing to share what they have learned (often through hard-won experience!).
While there are many risk management strategies that can be applied to avoid dento-legal complications, none are as important as making good treatment records. Implant treatment places a much greater requirement for meticulous records on the clinician. For implant treatment, the record should include a pretreatment letter sent to the patient and copied to each team member. The letter should state the following:
The recommendations of the team for treatment
The potential alternative treatments
Risks of treatment and the alternatives
Treatment schedule, costs, and funding considerations
Obligations of the patient
The record should include a detailed account of treatment events and include detail such as components used, as well as relevant discussions held with the patient. After the treatment is complete, the patient should be sent a posttreatment letter regarding the long-term management with roles of members of the team.
Today, dental implants have matured to the level of having become a standard of care alternative to fixed prosthodontics.
The courts ultimately will evaluate claims of negligent practice by evaluating the pretreatment alternatives and potential referrals given to patients before treatment is initiated.
Therefore, documentation becomes essential, including a record of informed consent, as to the risks, benefits, and alternatives to any treatment.
The prudent practitioner can no longer allow “presumed” patient finances to dictate the nature of the treatment plans offered. Rather, implants must be offered as another accepted alternative for the replacement of the dentition.
Failure to consider these obligations and to document the patient’s selection and reasons therefore creates vulnerability to claims of violation of the “standard of care.”
Nevertheless, with reasonable pretreatment planning and documentation, the careful clinician can avoid such claims, expand the alternatives offered to patients, and enjoy the satisfaction of adoring patients and the avoidance of the interference of lawyers in his or her practice!
*In 1999, the ADANSW established the Dental Defence Advisory Service (DDAS) to act as the first point of contact for members who are confronted by professional indemnity (PI) complaints, claims, or potential incidents.