How to stop an implant-related lawsuit before it happens

While implants can add another revenue stream to a practice, dental practitioners need to be aware of the associated risks, according to Ray Burdick, JD, an attorney in Irvine, CA, whose practice is focused on lawsuits involving dental implants.

During a presentation September 22 at the California Dental Association (CDA) fall session, Burdick had plenty of advice for dentists who want to protect themselves.

For example, robust consent forms are essential, he emphasized.

"A good consent form will kill a lawsuit before it's filed," Burdick said. It should completely cover the risks inherent to implant surgery, as well as the effects of post-treatment prescriptions. Infection, bleeding, sinus perforations, bone fractures, slow healing, and nonunion of the implant to the jaw, and permanent numbness should all be included as potential risk factors.

“A good consent form will kill a lawsuit before it's filed.”
— Ray Burdick, JD
" 'Permanent' is a key word," he noted.

Potential complications associated with anesthesia also should be included.

"That includes death," Burdick said. "It's purely legal, but true! It only makes sense to cover this possibility with general anesthesia."

Interestingly, not using a cone-beam CT scanner can be a possible area of exposure to lawsuits if an implant procedure goes awry.

"Failure to offer cone-beam CT in many cases may be considered substandard care," Burdick said.

Cone-beam CT should be offered regardless of a patient's ability to pay, he added. If the patient turns it down, he recommends providing written informed refusal or documenting the refusal in the patient's chart.

Informed refusal is critical for the entire treatment plan, Burdick stressed.

"You must explain the plan, regardless of the patient's ability to pay," he explained. "Then you can inform them of the risks of refusing treatment and list alternatives."

Having patients sign an informed refusal form or their chart adds another layer of protection, he said. Samples of these forms can be found at www.tdplt.com/consent.htm. In short, it should say, "Dr. ___ recommends this course of action." An option that states "refused to accept" with a signature line should appear at the bottom.

Having the patient sign the informed refusal form is a nondelegable task, Burdick warned. The front office staff can handle financial agreements but not informed consent forms. And the forms aren't much use if they aren't filled out, he noted.

"People who get sued don't fill in their forms completely," Burdick said.