guidelines for korean informed consent - The Dentists Insurance ...

GUIDELINES FOR KOREAN INFORMED CONSENTTDIC designed these forms to facilitate your “Informed Consent” discussions with your Korean-speaking patients.While the forms are excellent educational tools and assist patients with making an informed decision, if you do notspeak and understand Korean a person who can translate the patients’ questions and the dentist’s answers is requiredin order to fulfill the informed consent duty.History of informed consentThe modern doctrine of informed consent is based on the assumption that the patient must bear the expense,pain and suffering of any injury resulting from medical treatment and, therefore, has the right to know allmaterial facts about the proposed treatment.The American doctrine of informed consent grew out of the concept of battery, which is defined as unpermittedphysical contact. Early in this century several court cases established the duty of health care providers to obtainthe patient’s consent prior to treatment. Consent became informed consent in the 1950s and ’60s when severalcourts specified the types of information that health care practitioners must disclose to patients in the course ofobtaining informed consent.In 1972, the California Supreme Court in the case of Cobbs v Grant established a four-part test thatdefines the duty to obtain informed consent today. California dentists specifically must disclose (1) therisk of death, (2) the risk of serious bodily injury, (3) all facts deemed material to a decision to consentand (4) all facts disclosed by other practitioners under similar circumstances. Material information isthat which the dentist knows or should know a reasonable person in the patient’s position wouldregard as significant to making a decision. A material fact is one not commonly appreciated by laypersons.The duty to discloseAlthough informed consent specifically involves the education of the patient, it also represents the culminationof the process of developing a diagnosis and treatment plan. Only by having a solid diagnosis and realistic planfor treatment can the dentist reliably inform the patient about the nature of the proposed treatment, the benefitsand alternatives, risks and potential consequences of not performing treatment. The process of informing thepatient can be seen as a model for the dentist-patient relationship, one in which the dentist shares his or herknowledge, findings and recommendations as part of a cooperative effort to help the patient achieve a healthyoral condition.The dentist must assist the patient in making an informed decision about proceeding with the proposedtreatment or procedure by explaining:• the nature of the proposed treatment or procedure, including the cost and expected time for recuperationor healing.• the benefits of the proposed treatment or procedure.• the most common and severe risks associated with the proposed treatment or procedure, including theeffect of the individual patient’s specific condition or needs as well as the possible need for furthertreatment, including the possibility of death if applicable, i.e., reaction to anesthesia.• any reasonable alternatives to the proposed treatment or procedure, including the benefits and risks ofeach, and the risks and consequences of doing nothing.Page 1 of 3

Informed refusalIf the patient refuses the proposed treatment or procedure, the dentist must inform the patient about the likelyconsequences and obtain the patient’s informed refusal.Merely obtaining a patient’s informed refusal does not relieve the dentist from practicing within the standard ofcare. Even if the dentist fully discloses the potential consequences of refusal and the discussion has beendocumented properly, a patient may not consent to substandard care nor may the dentist ethically or legallyagree to provide it. Particularly in the case of refused x-rays, the patient’s decision may effectively prevent thedentist from providing further treatment. This fact should be addressed during the informed refusal discussion.Exceptions to disclosureThe dentist has no duty to disclose where:• the patient asks not to be advised.• the procedure is simple and any danger is remote and commonly understood to be remote. For example,the risk of death by anaphylactic reaction following an injection is a remote risk of treatment• the risk is minor and seldom results in serious side effects. For example, gingival discomfort while bitingdown on bitewing x-ray films is a minor risk of treatment.• disclosure would so seriously upset the patient that he or she would be unable to rationally weigh the risksof refusing the procedure (known as the therapeutic exception).In addition to these exceptions, informed consent is not required in very rare instances where the need torespond immediately to an unanticipated condition or a life-threatening emergency makes it impossible to obtainthe patient’s informed consent. However, since dental emergencies, unlike medical emergencies, are rarely lifethreatening,the dentist should make every reasonable effort to obtain the patient’s informed consent or refusal.The informed consent discussionThe dentist should obtain the patient’s informed consent through a face-to-face discussion that allows thepatient sufficient time to make an informed decision. If the dentist does not speak the same language as thepatient, in this case Korean, a person who can translate the patient’s questions and the dentist’s answers isneeded in addition to the written information translated into the patient’s language.Ideally, the informed consent discussion should take place at least several days before treatment, such as whenthe dentist presents the treatment plan (this is particularly important for extensive, complex or risky treatment).Since the dentist is legally obligated to disclose information in a manner the patient can understand, thediscussion should involve lay terminology, not scientific jargon. For the same reason, consider providingtranslated informed consent materials and, if necessary, an interpreter for non-English-speaking patients whomay require it. The dentist must decide what to tell the patient about a procedure based on whether the patienthas undergone the same or similar procedure previously. The use of educational materials is recommended.Because the dentist bears the ultimate legal and ethical responsibility for informing the patient, the informedconsent discussion cannot be delegated to staff. Although staff can assist by presenting the patient with printedor audiovisual materials, the dentist should personally solicit and address the patient’s questions and concerns.Informed consent for minor patientsFor minor patients, obtain the informed consent of the parent, custodial parent or legal guardian. Where parentslive separately, the patient’s personal information form should indicate which parent is the custodial parent.Where separated parents share custody, the patient’s record should contain letters from each providing consentand authorization to treat. Asking for a parent’s or custodial parent’s blanket consent for emergency treatmentin advance of an emergency is one useful way to avoid confusion and delays should the patient requireemergency care when a parent or legal guardian is not present.Page 2 of 3

Documenting informed consentThe patient’s treatment record should reflect: 1) that the patient read the form in Korean and had allquestions answered in Korean, 2) who translated the questions and answers during the discussion, and 3)whether the patient consented or refused treatment as proposed.Nothing in California law specifies a means for documenting the informed consent discussion. At minimum,the patient record should document the fact that the patient received information about risks, benefits andalternatives and consented to or refused the proposed treatment or procedure. Where the proposed treatment orprocedure is extensive, invasive or risky, a written informed consent form is recommended for facilitating anddocumenting the discussion.Content of informed consent formsForms for many procedures are available through professional liability insurers, commercial vendors and dentalspecialty organizations. Many dentists customize purchased forms or develop their own forms. In either case,adequate forms should address the nature of the proposed treatment, benefits and alternatives, risks and thepotential consequences of not performing treatment, as well as enable the dentist to include information specificto the case at hand. The form should be signed by the patient, the dentist and a witness. The patient shouldreceive a copy of the form and the original should be kept in the patient’s chart.Summary• Obtaining informed consent involves providing the patient with information about the nature of theproposed treatment, the benefits and alternatives of the proposed treatment, the risks of treatment, as well asany other information specific to the patient’s unique condition. Patients who refuse treatment must beinformed of the potential consequences of their decision.• Informed consent is a process, not a form. It involves a face-to-face discussion between the dentist andpatient, thus a translator is needed if the dentist and the patient do not speak the same language. Thediscussion should be conducted with sufficient time to address all of the patient’s questions and concerns.The task of obtaining a patient’s informed consent cannot be delegated to staff.• The informed consent discussion should be documented in the patient record, although the law does notspecify the means by which this is done. It should indicate: 1) that the patient read the informed consentform in Korean and had all questions answered in Korean, 2) who translated the questions and answersduring the discussion, and 3) whether the patient consented or refused treatment as proposed.• The informed consent discussion, even if properly conducted and documented, does not absolutely insulatethe dentist from an allegation of negligence or lack of informed consent. However, being able to supplydocumentation of the discussion often dissuades patients from pursuing a complaint. In all cases, thoroughdocumentation greatly increases the dentist’s chance of successfully defending against such allegations.For more informationFor more information about informed consent call 800.733.0634 or fax your request to 916.498.6175.Page 3 of 3Korean - CA