A reader recently sent me this letter.
I probably spend more time doing consultations before braces than anyone. It really bugs my staff, but I view it as relationship building and expect positive results and superior outcomes from this endeavor. I go over every applicable detail. My question is, can someone really consent to the risk of root resorption? I think that the only thing that a patient can consent to is: “I (the patient) trust you (the doctor) to care for me and look after my best interests. I trust you more than the other doctors available to treat me, and no treatment is not an option for me.” In my mind, patients are really consenting to allowing me to manage the potential risks, not the risks themselves. I believe that I am best served by the patient who has had consults from other doctors and has chosen me. Since you know more about informed consent than I do, how does my thinking jibe with what is practiced today? My current thinking is to develop a quiz that the patient or parent can answer after we have had our consultation. This would indicate that they truly understand what has been discussed. What do you think?
Our reader poses some interesting questions and thoughts. Let’s take a look at our Principles of Ethics and Code of Professional Conduct. Two sections deal with this issue. Principle I, Section C, states that “Members shall make treatment decisions and render all related opinions and recommendations based on the best interest of the patient,” and Section G states that “Members should inform their patients of any proposed treatment and any reasonable alternatives, so that the patient understands their treatment decisions.”
So, with this background, we can now thoroughly dissect our colleague’s questions. Dr S. states that he spends a lot of time at his consultations—good for him and his patients, too. There is sufficient evidence linking a positive doctor-patient relationship as the 1 common factor that every risk manager agrees yields positive results. Okay, what is informed consent? The 1 thing it is not is a form that the patient signs. The form is merely a memorialization of what the doctrine of informed consent calls for; at this juncture, it gets a little sticky. Depending on what state you practice in, the doctrine of informed consent takes 1 of 2 forms. Most states use a patient need-to-know standard. Under this application, the patient must be supplied with whatever material information one would need to know to accept or reject a contemplated course of therapy. There are 2 subgroups of this set. The first is the reasonable person. The second looks to provide the information to this particular patient. Obviously, the second is far more difficult to comply with, and most states use the first type. Determining and describing what a reasonable patient needs to know to decide between X, Y, or Z type of therapy using an A, B, or C mechanotherapeutic approach is an interesting question. Remember, we don’t give informed consent; we get it. We give information. The patient gives us in return the consent to invade his or her body in some manner, with the expectation that we will somehow effectuate a cure or improvement of some type.
Many jurisdictions, on the other hand (and it’s not a minority by much), use the professional standard. In these states, practitioners need only provide the amount of information that a reasonable practitioner would provide under the same or similar circumstances. Obviously, this form favors the doctor. As a practitioner, you would be well advised to seek counsel about what is the standard in your state and act appropriately.
Ethically and from a risk-management perspective, if we all practiced at the “highest” level, then we would all be relating our “opinions and recommendations based on the best interest of the patient.” It wouldn’t relate to the procedure or appliance that generated the highest profit margin, it wouldn’t be the approach that required the least amount of patient cooperation, and it wouldn’t be the philosophy that espoused saving all teeth at all costs in the name of smile esthetics as opposed to function, oral health, and physiology. Instead, it would be about what is right for this patient in this situation, meeting specific treatment objectives, and what this patient wants by using an approach with the least amount of risk and the most bang for the buck in an acceptable time frame and at an appropriate fee. The doctrine calls for us to ignore our own interests and to focus squarely on the patient.
We still haven’t answered our reader’s question as to whether a patient can consent to root resorption. Of course, he can’t—unless he can. As a general rule, patients cannot consent to the provision of negligent treatment. They cannot consent to starting orthodontic treatment in the face of frank and uncontrolled periodontal disease. They cannot consent to 8 years of orthodontic therapy that has shown limited improvement during that period of time. They cannot consent to 5 years of treatment without the benefit of radiographs to assess what is happening. I could go on and on, but you get the picture. What they can consent to is the knowledge that root resorption happens, and it can happen in virtually any case regardless of the treatment plan or mechanics used; that the doctor will monitor for it, and, if discovered, the doctor will use a risk-benefit analysis to determine whether it is in the patient’s best interest to continue with orthodontic therapy or to discontinue active treatment and accept some type of compromise. I believe that our reader was correct: patients are consenting to allow us to manage any negative sequellae that occur, but there is 1 caveat. We need to inform patients about what is happening and give them the pros and cons regarding continuing treatment; as long as we can live with their decisions relative to the risk-benefit ratio remaining in the patients’ favor, we have essentially met many elements of the doctrine of informed consent.
As to his second question—what is practiced today—I’ll answer that along with the last question, which was what I thought about his idea of giving his patients a quiz. Our reader is really asking what are the best ways to document or memorialize that this informed consent discussion has taken place. First, understand that the transmission of information doesn’t have to be a discussion per se. A patient can view a video; read a pamphlet, form, or letter; or listen to a tape; it doesn’t matter. You want to make sure that, after providing this information, you have given the patient the opportunity to ask and have any questions answered. The ultimate question is always: by whatever means, was the patient provided the material information required to allow him or her to make a comprehending and uncoerced decision regarding the health care proposed? It also is irrelevant as to who actually provided the information: the doctor, the treatment coordinator, or someone else. Our next step is, as all good risk managers will agree, documentation.
Obviously, you must maintain a copy of whatever information you provided to the patient. This is easy, unless you have done the entire consultation orally. In that case, maybe videotaping or audiotaping the discussion is in order. The next best way is to have the patients write, in their own words, what they understand the expectations, prognoses, risks, limitations, and compromises to be. This is where I think our reader was going. By designing a well-constructed questionnaire, one would surely be able to elicit a patient’s understanding of what was discussed. If the patient didn’t write what you thought he or she should have, this can be added after the quiz has been graded. By using this mechanism, a patient can never claim that he or she didn’t understand the information; the patient wrote it down. Obviously, farther down on this risk-management ladder of documentation, one would find all of the standard forms, many of them proprietary, that are currently in use. Practitioners standing on lower rungs of the ladder would write in the chart what they had discussed with the patients, perhaps having them sign. Even further down, one might see the words “informed patient of risks of treatment, sans any detail,” again with or without the patient’s signature. Finally, with no documentation of the discussion, it becomes your word against the patient’s; this is not the best position to be in.
Obtaining adequate informed consent is somewhat of an art. Some of us are better communicators than others. Regardless, we are equally adept at ensuring that we have adequate documentation about our “discussions” with patients in whatever form this transmission of information took.
One item that wasn’t discussed was our reader’s comment that he prefers his patients to have visited other doctors before they see him. Without getting into it, I too feel that way. When prospective patients have spoken with others and choose you, as a general rule, it is because for whatever reason you have struck a chord with that person. Chords are derived from strumming many strings, and so exactly which note caused them to choose you is sometimes difficult to ascertain, but the doctor-patient relationship should be a little stronger because you were chosen on a comparative basis. However, the reason I bring this up is that it begs another question: what is the proper protocol when providing a second opinion?
According to our Code of Conduct, Principle I, Sections D and E respectively state: “It is ethical to provide a second opinion to a patient as long as it is qualified as to whether or not it is based on a review of the treating practitioner’s records and treatment history” and “A second opinion should include a diagnosis and treatment plan recommended to the patient. It must be honest and focus on the facts presented.” The key part here is that it must be honest. As long as our reader did not know what the first doctor said, I have no problem with his preference for patients who have already seen someone else. If, on the other hand, our reader panders to the patient’s desires, knowing that his colleagues have already turned the patient off by something that was said or done, and, as long as he uses this information to entice the patient to select him, then I see an ethical violation.
I know many doctors who won’t provide second opinions because they don’t want to potentially disparage a colleague. Fair enough, it’s a free country. But if this is carried to its logical extreme, this philosophical approach would leave many people with no place to go. I also know doctors who will do a second opinion only when they know what the first one said. Not fair at all. I know others who will provide a second opinion; it makes no difference whether it is mid-pretreatment, if the patient understands that, regardless of what transpires, they will not treat the patient. With no dog in the fight, one can be “honest and focus on the facts presented.” My preference is that, when providing second opinions, tell the patient that you don’t want to know what the first doctor said. In this manner, it is as truthful and equitably competitive as possible in second-opinion circumstances.