Treating the Minor Patient
by Thomas J. Weber, Esquire and Heather L. Paterno, Esquire

Treating the minor patient presents numerous unique issues. This article will address several of the most frequently questioned legal issues as they pertain to the treatment of a minor patient. This article is not intended to be a comprehensive analysis of all potential issues that may arise concerning a minor patient. Specific questions should be presented to the legal counsel of your choice.

Obtaining Consent Prior to Treatment
Most practitioners are familiar with the concept of informed consent. This common law provision requires that patients undergoing an invasive procedure be made aware of the potential risks and alternatives for the procedure. In addition to informed consent (which is applicable to invasive procedures performed on minors), dentists must also obtain parental consent prior to the initiation of any treatment on minors.

Dentists practicing in the Commonwealth of Pennsylvania are statutorily obligated to obtain parental consent for any non-emergency dental services provided to a child 17 years of age or younger who remains under his parents' care. This consent is required for any treatment and, therefore, it is much broader than the typical informed consent requirement.

An emancipated minor may consent to medical services. In addition, any minor who is over the age of 18, or who has graduated from high school, or has married, or has been pregnant, may consent to medical, dental and health services for him or herself without the consent of another. Additionally, a minor may consent to medical treatment on behalf of his/her child. In an emergency situation, the dentist need not secure parental consent when doing so would result in the delay of treatment increasing the risk to the minor's health or life.

In terms of when and how the consent must be obtained, there is little guidance. The conservative and, therefore, safest approach, would be to have the minor's parent accompany him or her to the office on each and every visit to provide consent for treatment. Recognizing that, at times, this is difficult to accomplish, other alternatives may prove acceptable. One would be to require that if a parent cannot accompany the patient, another adult individual would do so who has been granted permission by the parent to consent to the treatment. This approach, wherein the parent essentially appoints a proxy to provide consent, should be viewed on an equal plane as the method of having the parent provide the consent. It is recommended that you require the presence of a parent or their appointed proxy when providing treatment to a minor patient.

In the event it is impossible to have either a parent or a proxy accompany the minor to the office, extreme caution should be used in rendering any treatment. Recognizing that children of driving age may frequent a dentist's office for routine cleanings without adult accompaniment, additional steps must be taken. When the appointment is confirmed, notice should be given to the parent that treatment will not be rendered in the event the parent is not present to provide consent or, at a minimum, execute a written consent in anticipation of the treatment. The consent form should delineate the treatment the child is expected to undergo. Further, upon presentation at the office, should any additional work need to be done, such treatment should be postponed until a parent can be contacted so as to obtain parental consent. While this appears to be a prudent path to follow, there is no guarantee it would not expose the dentist to a complaint.

Due to the infrequency of routine visits, a new consent should be obtained for each office visit. If the treatment requires a sequence of visits, a consent at the initiation of the treatment should suffice. However, the consent should clearly set forth the scope and nature of the treatment to be provided. In the event that during the course of a treatment regimen, an unforeseen circumstance is encountered, a parent should be notified immediately.

As a standard procedure, you should encourage that a parent or guardian accompany their children on all visits.

Qualifying as A Legal Guardian
Questions have been presented as to whether a foster parent can qualify as a legal guardian for purposes of providing consent for treatment. The Legislature has provided that the relationship between foster parents and the child is by its very nature subordinate to both the relationship between the agency/child and child/parent; the law transfers "care and custody" to the agency, but the day-to-day supervision of the child and his activities, and most of the functions normally associated with legal custody, are the responsibility of the foster parents. As a result, foster parents are in a position to make determinations regarding the day-to-day issues presented in relation to the care of the children. This would include routine dental visits. In the event a foster child is in need of extensive dental work, it would be prudent for the dentist to approach the agency to make sure that issues as to consent and payment are properly resolved before treatment.

Reporting of Child Abuse
As many dentists are aware, the dental regulations place an obligation on dentists to make reports of suspected child abuse. This regulatory provision actually comes from a statutory mandate governing all health care practitioners. The Act and regulations provide immunity for any practitioner who makes such a report in good faith as a result of reasonable cause to suspect such abuse on the basis of his professional or other training and experience.

The dental regulations specifically spell out the type of reports that can be made and the information required. Although the regulations, as well as the Act, provide immunity for any practitioner making a good faith report, the report is not without possible adverse consequences. Although research did not uncover any cases dealing with a dentist facing a defamation suit as a result of a report, one such case was filed against a psychologist. Even though the psychologist was ultimately vindicated and the case dismissed early in the process, the fact remains that the psychologist was required to obtain counsel and defend the defamation suit. Any practitioner facing a situation of suspected child abuse must comply with the regulatory obligation to make a report. In doing so, however, the practitioner should be careful to limit his report only to those entities authorized to receive the same under the regulations and to provide only the information necessary. Further dissemination of the report could expose the practitioner to allegations of defamation.

Maintaining Minor Patient Records
The dental regulations govern the manner in which a dentist must maintain patient records. In addition, dentists must maintain a patient's dental record for a minimum five years from the date of the last entry. This raises a potential problem in relation to the records of minor patients. The normal statute of limitations on a negligence action is two years from the date of the incident. Patients may be able to extend this period somewhat by utilizing what is called the "discovery rule," which tolls the statute of limitations until the patient had reasonable grounds to know of the incident giving rise to the potential malpractice claim. In the case of minor patients, the statute of limitations does not begin to run until the age of majority. Therefore, it is conceivable that a dentist could face a malpractice claim several years after treatment was rendered to a minor child. If during the normal purging of inactive patient records a minor's chart was destroyed, the dentist may be placed in a difficult position in defending against the claim. Therefore, it may be advisable to alter the protocol for record retention to provide the opportunity that, in the event there is a case involving a minor wherein there is reason to suspect a potential claim may be made in the future, the record should be protected from the routine destruction schedule. It is recognized that this issue will not come up frequently since subsequent treaters will often make a request for the patient records and are under an obligation to maintain the same.

Another issue that frequently arises involving minor patient records is access to the records by parents who are separated or divorced. Absent a court order precluding the release of any part or parts of the dental record, or a situation involving a court order governing battered spouses and their dependent children, both parents shall be provided access to all of the minor patient's dental records. As a result, absent a court order preventing such disclosure, the non-custodial parent is entitled to access to his or her minor children's dental records.

The foregoing briefly touches upon some of the more frequently addressed issues pertaining to the treatment of minor patients. As with the determination of the proper treatment regimen, the examination of your legal obligations as they pertain to minor patients must be made on a case-by-case basis. It is advisable that when confronted with any of these or similar situations, the dentist consult with his attorney as to his statutory, regulatory and common law obligations.