SUBPART C. INFORMED CONSENT TO DENTAL TREATMENT

§1161.1. Consent to dental treatment

            A. As used in this Subpart:

            (1) "Dental treatment" means those practices and procedures which fall within the definition of the practice of "dentistry", as that term is defined in R.S. 37:751, except when performed by a physician or surgeon in the practice of his profession.

            (2) "Patient" means a natural person who receives dental treatment.

            (3) Notwithstanding the provisions of this Subpart, a dentist who performs oral or maxillofacial surgery in a hospital shall be subject to the provisions of R.S. 40:1157.1.

            B. Notwithstanding any other law to the contrary, "informed consent" means consent to any dental treatment or course of dental treatment given by a patient:

            (1) After the patient has been informed in general terms of the nature and purpose of the dental treatment or course of dental treatment and those risks of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of an organ or limb, or disfiguring scars, if any, associated with such dental treatment or course of dental treatment which would ordinarily have been disclosed under the same or similar circumstances by dentists with the same or similar training and experience; and

            (2) After the patient has been given an opportunity to ask questions concerning such dental treatment or course of dental treatment and his questions, if any, have been answered in a satisfactory manner.

            C. Where the informed consent for dental treatment is obtained in writing, no evidence shall be admissible to modify or limit the authorization for performance of the dental treatment or course of dental treatment and such informed consent, in the absence of clear and convincing proof that execution of the consent was induced by fraudulent misrepresentation of material facts by the involved dentist, shall be conclusively presumed to be valid and effective. Where such written consent is employed it shall also be conclusively presumed that the patient, or his representative, is able to communicate effectively in spoken or written English or in any other language in which the consent form is written and that the patient, or his representative, has understood the information disclosed in the written consent, provided that such informed consent is documented in a writing which contains all of the following:

            (1) Sets forth in general terms the nature and purpose of the dental treatment or course of dental treatment together with those risks described in Paragraph B(1) of this Section.

            (2) Acknowledges that such disclosure of information has been made, that the patient has been given an opportunity to ask questions concerning such dental treatment or course of dental treatment, and that all questions asked have been answered in a satisfactory manner.

            (3) Is signed by the patient for whom the dental treatment or course of dental treatment is to be performed, or if the patient for any reason lacks legal capacity to consent, by a representative of the patient as provided in the Louisiana Medical Consent Law, in R.S. 40:1159.1 et seq.

            D. The responsibility for obtaining the informed consent of a patient shall be that of the dentist who is actually to provide or supervise the provision of the contemplated dental treatment or course of dental treatment. However, a lay or professional employee of a hospital or of the dentist, acting with the approval of the dentist, may validly perform the ministerial act of documenting such informed consent by securing the completion and execution of a written consent.

            E. In any action for damages in which it is alleged that a patient underwent a dental treatment or a course of dental treatment without his informed consent, the plaintiff shall have the burden of proving, by a preponderance of the evidence, that:

            (1) The defendant dentist failed to disclose a risk of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of an organ or limb, or disfiguring scars associated with such dental treatment or course of dental treatment which would ordinarily have been disclosed under the same or similar circumstances by dentists with the same or similar training and experience;

            (2) Such undisclosed risk did occur; and

            (3) A reasonably prudent person in the patient's position would not have undergone the dental treatment or course of dental treatment had he been properly informed.

            F. It shall not be essential to the validity of any informed consent that the consent be obtained in writing. Where consent to dental treatment by the patient or consent to dental treatment from a person authorized by law to consent to dental treatment for the patient is secured other than in writing in accordance with Paragraph C of this Section, the explanation to the patient or person authorizing consent for the patient shall include the matters set forth in Paragraphs B(1) and B(2) of this Section, such consent shall be valid, effective, and subject to proof according to the rules of evidence of ordinary cases.

            Acts 1987, No. 669, §1; Acts 2012, No. 600, §2, eff. June 7, 2012; Acts 2012, No. 759, §2, eff. June 12, 2012; Redesignated from R.S. 40:1299.131 by HCR 84 of 2015 R.S.