COVID-19 and Informed Consent: What You Need To Know
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COVID-19 and Informed Consent: What You Need To Know

COVID-19 has no doubt impacted every aspect of our lives. After months of practice interruption, many dental practices have resumed routine care, and dentists are taking extraordinary steps to protect the safety of their patients and staff. While dental practices are learning more every day about how to best provide care during the pandemic, there are still many unanswered questions that create uncertainty, stress and unease.

The Dentists Insurance Company’s Risk Management Advice Line is continuing to receive calls from practice owners about how to navigate issues related to COVID-19. These inquiries range from how to obtain enough PPE to how to address staff who are fearful of returning to work. Many calls concern informed consent and communicating any risks of contracting the virus in a dental setting.

Informed consent is a fundamental component of managing risk in dentistry. It’s more than just a form. It is a dialogue between a dentist and patient about the nature of the recommended treatment; the risks, complications and benefits of treatment; and alternatives to the recommended treatment, including no treatment at all. A signed informed consent form is considered the first line of defense when facing a professional liability claim.

Attorney Art Curley of Bradley, Curley, Barrabee & Kowalski PC in Larkspur, Calif., discussed consent in the era of COVID-19 during a recent webinar hosted by TDIC. He stated that at its most basic level, the agreement to undergo treatment by health care providers is implied by the mere reason a patient walks into an office for dental care. With COVID-19, people know that contracting the virus is a risk anywhere they go in public, whether it’s to the dental office, the grocery store or the bank.

“Everybody knows COVID-19 is out there. This is one thing that nobody can say ‘I’ve never heard of it,’” Curley said. “So, they’re consenting to come to a dental office, knowing anything they do in public has a risk of contracting COVID-19.”

Some dentists who called the Advice Line have asked whether they should require a separate informed consent form related to COVID-19; however, TDIC does not recommend practice owners use a form specific to COVID-19. A separate form may lead to a false sense of security and does not provide immunity for dentists who are negligent in following current and appropriate infection control guidelines.

Rather, standard informed consent forms are sufficient, assuming these forms address risk of possible infection. All forms should include acknowledgment of the risk of infection from dental treatment, including COVID-19. TDIC offers sample forms in nine languages.

It should be noted that performing treatment without informed consent can set the stage for a liability claim, as it is below the standard of care. However, informed consent forms are not waivers. They neither relieve dentists of their responsibilities nor protect dentists from providing treatment below the standard of care.

“Informed consent is not a substitute for substandard care. A patient cannot consent to substandard care,” Curley said in the webinar.

While a signed and dated form is important, the form is only one part of a broader process. More important is an open, two-way conversation with patients to ensure they understand all the risks involved. This conversation is a good time to let patients know of the steps being taken to protect their safety with regard to COVID-19, such as hand hygiene, aerosol management, cleaning and disinfection procedures and other controls following OSHA and CDC guidelines. During these conversations, patients should be given the opportunity to ask questions and be given honest, straightforward answers. All of these discussions should be well documented and kept in the patient’s chart.

Should a patient refuse to sign an informed consent form for whatever reason, it is advised to postpone the procedure. Staff should inquire as to why the patient refuses to sign the form. If, after further explanation, the patient still refuses, this is a sign of noncompliance and a dismissal may be in order, following formal patient dismissal protocols.

Curley also addressed the concern of whether a dentist could be held liable if a patient believed he or she contracted the virus within a practice. While Curley stated that there have been no documented cases of COVID-19 being contracted from a dental office, it is possible for a patient to make such a claim. But following all OSHA and CDC infection control guidelines — and, more importantly, documenting those actions — can protect you from liability.

“The standard of care is infection control,” Curley advised. “If you violate infection control, it’s presumed you’re negligent and anything that happens after that is considered your fault.”

Dental staff should also openly and thoroughly discuss and document the steps they have taken to screen both staff and patients for COVID-19. Each dental team member should be screened at the start of their shift, including having their temperature taken and a symptom assessment performed. Note, employers are not allowed to require an employee to take a COVID-19 test prior to returning to work.

For patients, screening should include a temperature reading and updated health history. Patients should be asked whether they have symptoms, whether they have been in contact with someone who has tested positive and whether they have traveled to an area with high numbers of positive cases. TDIC’s online resources for managing risk during COVID-19 include a link to a downloadable patient screening form that can be signed by patients acknowledging they will notify the office should they become ill with COVID-19 symptoms. Practice owners should also be aware that they have an ethical — and possibly legal — obligation to notify patients if a staff member they have been in contact with tests positive for COVID-19. Check with your local county health department for guidance on how to proceed.

The implications of COVID-19 will continue to evolve and change over the coming months as more becomes known about the virus. Regardless, practice owners must remain vigilant in protecting their patients and staff. Honest, open conversations and thorough documentation not only go a long way in assuaging fears, they can also protect practices from potential liability claims.

TDIC’s Risk Management Advice Line is a benefit to TDIC policyholders. To schedule a consultation with an experienced risk management analyst, visit tdicinsurance.com/RMconsult or call 800.733.0633. For Risk Management guidance in Idaho, Oregon or Washington, call 800.452.0504.