Before most non-emergency dental procedures in New York, a dentist is legally required to disclose the reasonably foreseeable risks, benefits, and alternatives of the proposed treatment in a way that allows the patient to make an informed decision. This requirement comes from New York Public Health Law Section 2805-d, and a failure to meet it can form the basis of a dental malpractice claim if the missing information would have changed a reasonable patient’s decision and led to the injury at issue. Here is what informed consent actually requires under New York law and what it can mean if that process broke down.
What Informed Consent Legally Requires in New York
New York defines the legal standard for informed consent in New York Public Health Law Section 2805-d, which applies to medical, dental, and podiatric providers alike. Under this statute, a lack of informed consent means a provider failed to disclose the alternatives and reasonably foreseeable risks and benefits of a treatment that a reasonable dentist under similar circumstances would have disclosed, in a way that allows the patient to make a knowledgeable decision. New York applies what is known as the professional standard, meaning the benchmark for what should have been disclosed is based on general dental practice, not on what an individual patient might have personally wanted to know.
When the Informed Consent Requirement Applies
New York law does not treat informed consent as a requirement for every dental interaction. Under Section 2805-d, a claim based on lack of informed consent is generally limited to:
- Non-emergency treatment, procedures, or surgery
- Diagnostic procedures that involve invasion or disruption of the body
This means routine, lower-risk care and true emergency treatment, where there is no realistic opportunity for a full risk discussion beforehand, generally fall outside this specific legal theory, even though a dentist still owes patients a general duty of care in those situations.
What a Patient Generally Must Show
An informed consent claim in New York involves more than simply showing that a dentist did not mention every possible risk. Under the statute, a patient generally must establish that:
- The dentist failed to disclose a risk, benefit, or alternative that a reasonably prudent dentist would have disclosed under similar circumstances
- A reasonably prudent person in the patient’s position would not have undergone the treatment if they had been fully informed
- The lack of informed consent was a proximate cause of the injury or condition for which compensation is sought
This means the missing information must have been significant enough that a reasonable patient’s decision would likely have changed, and that decision must be directly connected to the harm that followed.
Important: A signed consent form is not automatically a complete defense. If the form was vague, did not address the specific risk that materialized, or was signed without a meaningful conversation about the procedure, it may not satisfy New York’s informed consent standard, even though a signature exists in the file.
Defenses Dentists May Raise
New York law also gives dental providers several statutory defenses to an informed consent claim. Under Section 2805-d, it can be a defense that:
- The undisclosed risk was so commonly known that disclosure was not necessary
- The patient assured the dentist they would proceed regardless of the risk, or stated they did not want to be informed
- Obtaining consent was not reasonably possible under the circumstances
- The dentist reasonably believed that fully disclosing the risk could adversely and substantially affect the patient’s condition
Because these defenses are built into the statute, informed consent cases often come down to a detailed comparison between what was actually discussed with the patient and what a reasonable dentist would have disclosed.
Common Situations Where Informed Consent Issues Arise
Informed consent concerns can surface across many types of dental treatment, including:
- Tooth extractions where nerve damage or numbness was a known risk that was not discussed
- Root canal or restorative procedures where less invasive alternatives were not presented
- Orthodontic treatment involving risks such as root resorption that were not explained
- Implant placement where the risk of nerve injury or implant failure was not disclosed
- Oral surgery where a patient was not informed of significant risks specific to their health history
Deadlines That Can Affect a Dental Malpractice Claim
In New York, claims involving dental malpractice, including those based on lack of informed consent, are generally governed by CPLR Section 214-a, which requires an action to be commenced within two years and six months of the act or omission at issue, or from the end of continuous treatment for the same condition. This is an occurrence-based deadline, meaning the clock generally starts running from the date of the treatment itself rather than from when the patient later discovers a problem, with limited exceptions for situations such as a retained foreign object. Because this deadline is significantly shorter than New York’s general personal injury statute of limitations, and because it can pass without a patient realizing anything is wrong, addressing a potential dental malpractice concern promptly is important.
Talk to a New York City Dental Malpractice Attorney
Informed consent claims require carefully comparing what a patient was told against what a reasonable dentist would have disclosed, so experienced legal guidance matters. Chianese & Reilly Law, P.C. represents patients throughout New York City in a full range of dental and medical malpractice matters. Our attorneys can review your treatment records, evaluate whether proper informed consent was obtained, and help you understand your options. Reach out through our contact page or call (516) 614-6516 today to schedule a free consultation.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. For legal guidance tailored to your specific situation, consult a licensed attorney.