Lack of Informed Consent

There are many situations that can lead to a claim for dental malpractice. In addition to injuries caused by a dentist or hygienist’s deviation from the applicable standard of care, a dental malpractice claim can also arise from a dental provider’s failure to obtain informed consent before performing a particular procedure. People who have been victims of a lack of informed consent may be able to assert a claim for damages from the responsible dentist or provider. Rockland County dental malpractice attorney Valerie J. Crown regularly advocates for victims of health care negligence, carefully reviewing a patient’s file to determine whether a mistake was made.

The term “informed consent” has a particular meaning under the law. It means that, not only did a medical or dental patient give permission to a provider to perform a certain act, but also the patient did so with an understanding and appreciation of the possible risks of the procedure. Whether or not informed consent was given must be determined on a case by case basis, taking into consideration the patient’s intellectual ability and emotional state at the time of the communication between the parties. What amounts to informed consent in one situation may not be adequate in another circumstance.

Dentists and other health care providers have an obligation to inform patients of the potential benefits of a procedure, such as a root canal, an extraction, or another type of oral surgery, and also the risks associated with the procedure. Ideally, the patient should also be told what could happen if the proposed dental treatment is refused, and alternative treatment options should be discussed as well. The patient and the provider should discuss these matters in a timely fashion, rather than in the final moments before the procedure begins. While a signed consent form can be evidence that the patient was apprised of the risks and benefits of the treatment and willingly consented, it is possible to overcome this presumption in some cases.

As in all malpractice cases, the patient has the burden of proving that the dentist or other provider breached the standard of care and that, as a proximate result, the patient suffered actual damages. The plaintiff must provide proof sufficient to convince a jury of their entitlement to a favorable verdict by a preponderance of the evidence. In most dental and medical malpractice cases, this requires expert testimony from another professional who is familiar with the applicable standard of care. Obtaining an expert witness, who is able to explain complex issues in layman’s terms and who will be persuasive to a judge and jury, can be a complicated task.

Hiring an attorney who regularly practices in medical and dental negligence law is a good first step in pursuing compensation for medical expenses, lost wages, and pain and suffering caused by a dentist’s error. Speaking with an attorney as soon as possible after learning that you may have been a victim of malpractice is important because a claim must be filed within both the statute of limitations and the statute of repose, or it will likely be subject to dismissal by the court.

Nobody should need to suffer because of an act of negligence by a trusted medical or dental care provider, but the unfortunate truth is that these professionals make mistakes much more often than they would like the public to know. If you or a loved one has been a victim of an act of dental malpractice anywhere in the Greater New York area, Rockland County lawyer Valerie J. Crown is here to advocate for your right to compensation for your injuries. Call us at 845.708.5900 or Valerie’s cell phone available 24/7 at 845.598.8253 or contact us online to schedule a free consultation with an injury attorney to discuss your case.