Patient Care 

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Informed consent during COVID-19

March 26, 2020 34226

Guidance for emergency treatment related to COVID-19.

Should I require a separate signed informed consent for emergency treatment related to COVID-19?

While we know that there are sample consent or “waiver” forms available from various sources on the internet, from a legal standpoint, CDA and TDIC do not advise using a separate COVID-19 form. Instead, you should be obtaining basic consent for the specific treatment, as you ordinarily would.

An informed consent form, by itself, is insufficient to shield a medical provider from liability and creating one specific to COVID-19 may provide a dentist with a false sense of security. Rather, an informed consent form is designed to be a part of a process of obtaining a patient’s agreement, following an explanation and discussion of why treatment is needed, as well as the risks of and alternatives to a procedure. For emergency procedures contemplated during the current COVID-19 situation, the informed consent process for that procedure is sufficient. This typical process, which all dentists should already have in place, would cover the explanation and nature of the procedure, why it is emergent (or not), alternatives and necessity of treatment or no treatment, and the risks to the procedure, which always would include infection.

Through the process of deciding to provide care and performing the treatment, a dentist’s exposure to liability, in this setting, may occur by:

  1. Providing treatment that is below the standard of care, or
  2. providing unnecessary treatment within the standard of care.

In either case, an informed consent document/process will never give the care provider “carte blanche” to provide substandard or unnecessary care. For example, if a dentist intentionally or negligently fails to follow appropriate infection control guidelines (some of which are rapidly changing as we learn more about COVID-19), an informed consent document will not provide immunity from liability. Informed consent sets forth the risk of treatment.

Guidance for what constitutes a dental emergency is changing as the COVID-19 pandemic progresses. CDA (as well as other credible dental organizations) is currently advising dentists to use their professional judgment to determine a patient’s need for urgent or emergency care on a case by case basis and determine if it is appropriate to treat with the recommended PPE. In these situations, we recommend use of procedure specific written, signed and dated informed consent forms, following informed consent processes and detailed documentation, rather than a separate informed consent form related to COVID-19. The chart notes and discussion with the patient should include the thought process and judgment for why a procedure is an emergency (or not).

As dentists regularly do, the best course of action is to have a full and honest discussion with the patient as to the procedure, the alternatives, why the treatment is immediately necessary (or unnecessary as the case may be), and the infection control protocols the dentist is utilizing to protect the patient and staff. The documentation should also include the specific steps taken to minimize risk and maximize protections for everyone, including patients, the dentists and dental staff. These steps include proper screening of the patients (e.g., temperature, recent travel, any exposure to COVID-19), and following all current OSHA, CDC, and any other credible organizations and entities for updated guidelines for increased infection control measures. We recommend that the practice maintain and retain good and detailed documentation of those precautionary steps in the event these practices are called into question, and so they can be readily explained to both patients and staff.

As always, a note in the chart indicating the patient was given an opportunity to ask questions and that all questions were answered is exceedingly helpful, especially in this setting. A good chairside manner and more detail in the documentation always will help protect the practitioner.