In addition to providing quality care, effective communication and good rapport should become a standard part of office management .objectives. Dentists can -be sued not only for negligent treatment but also for failing to
inform patients properly about the treatment to be rendered,
the reasonable alternatives, and the reasonable benefits, risks, and complications of each. In fact, in some states, treatment without a proper informed consent is considered battery. The concept of informed consent is that the patient has a right to consider known risks and complications inherent to treatment. This enables the patient to make a
knowledgeable, voluntary decision whether to proceed with recommended treatment or elect another option. If a patient is properly advised of inherent risks anda complication. occurs in the absence of negligence, the dentist is not legally liable. However, a dentist can be held liable when an inherent risk occ.urs after the dentist fails to obtain the patient’s infotmed consent. The rationale for liability is that the patient was denied the opportunity to refuse treatment after being properly advised of risks associated with the treatment and reasonable options. . Current concepts of informed consent are based as much on providing the patient the necessary information as on actually obtaining a consent or signature for a procedure. In addition to fulfilling the· legal obligations, obtaining the proper informed consent from patients benefits the clinician in several ways: First, well-informed patients who understartd the nature of the problem and have realistic expectations are less likel to sue. second, a’
properly presented and documented formed consent often prevents frivolous claims ‘based on misunderstanding or unrealistic expectations. Finally, obtaining an informed consent offers the dentist the opportunity to
develop better rapport with the patient by demonstrating a greater personal interest in the patient’s well being. The requirements of an informed consent vary from state to state. Initially, informed consent was to inform patients that bodily harm or death may result from ‘a procedure.
It did not require discussion of minor, unlikely complications that seldom occur and infrequently result in ill effects. However, some states have currently adopted the concept of “material risk,” which requires dentists
to discuss all aspects material to the patient’s decision to undergo treatment! even if it is not customary in the profession to provide such information. A risk is material when a reasonable person is likely to attach significance to it in assessing whether to have the proposed therapy.
In many states dentists have a duty to obtain the’ patient’s consent; they cannot delegate the entire responsibility, Although staff can present the consent form, the dentist should review treatment recommendations,
options, and the risk, and benefits of each option;the dentist ~ust also be available to answer questions. Although not required by the standard of care in many states, it is advisable to get the patient’s written consent
for invasive dental procedures. Parents or guardians must sign for minors. Legal guardians must sign for individuals with mental or similar incapacities. Incertain regions of the country, it is helpful to have consent
forms written in other languages or have multilingual staff members available. Informed consent consists of three phases: (1) discussion,(2) written consent, and (3) documentation in the patient’s chart. When obtaining informed consent, clinician should conduct a frank discussion and provide information about seven areas: (1) specific problem, (2) proposed treatment, (3) anticipated or common side effects, (4) possible complications and approximate frequency of occurrence, (5) anesthesia, (6) treatment alternatives, and (7) uncertainties about final outcome,
induding a statement that the treatment has no absolute guarantees.
This information must be presented so that the patient has no difficulty understanding it. A variety of video presentations are available describing dental and surgical procedures and the associated risks and benefits. These
can be used as part of the informed consent process but should not replace direct discussions between the dentist and patient. At the conclusion of the presentation, the patient should be given an opportunity to ask any additional questions. After these presentations or discussions, the patient
should sign a written informed consent. The written consent should summarize in easily understandable terms the items presented. Some states presume that if the information is not on the form, it was not discussed. It
should also be documented that the patient can read and speak English; if not, the presentation and written sent should be given in the patient’s language. To ensure that the patient understands each specific paragraph of
the consent form, the dentist should consider having the patient initial each, paragraph on the form. An example of an informed consent document
appears’ in Appendix V. At the conclusion of the discussion, the patient, dentist, and at least one witness should sign the informed consent document. In the case of a minor; both the ‘patient and the parent or legal
guardian should sign the informed consent. In some states, minors may sign the informed consent for their own treatment if they are married or pregnant. Before assuming this to be the ‘case, local regulations should be
.verified. . The third and final phase of the informed consent procedure
is to document in’ the patient’s chart that an informed consent was obtained after the dentist discussed treatment options, risks, and benefits. The dentist should record the fact that consent discussions took place
. and should also record other events, such as videos shown, ·brochures given, and so on. The written consent form should be included.
Three special situations exist in which an informed consent may deviate from these guidelines: ‘First, a patient may-specifically ask not to be informed of all aspects of the treatment and complications (this must be
specifically docmented in the chart). Second, it may be harmful in some cases to provide all of the appropriate int.ormation to the patient. This is
termed the therapeutic privilege for not obtaining a complete informed consent. It is somewhat controversial and would rarely apply, to routine oral surgical and dental procedures. Third, a complete informed consent may not be necessary in an emergency, when the need to proceed with treatment is so urgent that unnecessary delays to obtain an informed consent may result in further harm to the patient. This also applies to inanagment of Mplications during a surgical procedure. It is assumed that if failure to manage a condition immediately would result in further patient harm, then treatment should proceed without a specific informed consent.
Patients have the right to know if any risks are associated with their decision to reject certain forms of treatment. This informed refusal should be clearly documented in the chart, along with specific information informing . the patient of the risk and consequence of refusing treatment.
Patients who do not appear for needed treatment should be sent a letter warning of potential problems that may arise if they do not seek treatment. Copies of these letters should be kept in the patient’s chart.
Related Medical Assignments
In recent months, the settlements of many secondary bank loan trades have been thwarted or delayed because a borrower or administrative agent has denied the consent to assignment required under the applicable loan agreement. For instance, it has become common for consent to be denied merely because the assignment is being made to hedge funds or similar investment vehicles. For individual buyers and sellers of bank loans, the denial of consent can result in delay, increased cost and trade failure. For the market as a whole, such denials threaten to undermine the growing liquidity of the secondary bank loan market. This marks a movement away from the open and evolving model of liquid bank loan trading.1
Although a standard condition to the assignment of syndicated bank loans is the receipt of the borrower’s and the administrative agent’s consent to the assignment, the consent right is generally limited by the proviso that it may not be “unreasonably withheld.” In many cases, loan market participants that have been denied consent have been questioning whether such denial was actually “reasonable.”
The unreasonable refusal to grant consent can be costly to participants in the secondary market and market participants denied consent to assign a loan may have a basis to challenge such refusal. This memorandum briefly discusses the consent requirements, issues raised by the increasing number of consent denials, and the legal framework that might be used to analyze a challenge to such denials.
In general, agents and borrowers include consent requirements in their loan agreements to ensure that their lender syndicate consists of sophisticated, creditworthy institutions that will see “eye to eye” in connection with lender-group issues. To the extent the relevant loan facilities include revolving or delayed draw term loan commitments, the borrower and the agent also have an interest in insuring that each syndicate member has the ability to meet its future funding obligations. In addition, agents want to have confidence that new lenders are able to meet their obligations to indemnify the agent against any costs or liabilities they may incur on behalf of the lending group.
To address these concerns, most U.S. syndicated loan agreements drafted in recent years require that prospective assignees be “accredited investors” and have experience in making or purchasing bank loans. In addition, these loan agreements provide that an assignment is conditioned on receiving the consent of both the agent and the borrower, which consents will not be “unreasonably withheld.” This consent right provides an opportunity for agents and borrowers to review information concerning potential lenders’ financial and legal condition. The diligence process takes time, but consent is provided to the vast majority of proposed assignments.
INCREASE IN BORROWERS’ AND AGENTS’ REFUSAL TO PROVIDE CONSENT
In recent months, a substantial number of assignments have failed to garner approval because a borrower or agent has withheld consent to all or certain classes of prospective lenders. Borrowers and agents have pointed to the Lehman Brothers bankruptcy in the fall of 2008 to justify the increased refusal to consent to assignments. Lehman’s default on numerous obligations as a lender to fund syndicated loans resulted in great disruption for borrowers and agents alike. As a result, since that time borrowers and agents have demonstrated an increased fear of lender default risk and credit approval standards have risen.
In addition, there have been a number of total transfer “freezes” in situations where the borrower is in the midst of a restructuring or refinancing. Some borrowers have used their consent power to ensure that new lenders will be receptive to their requests for waivers or restructurings of the loans. These borrowers often contend that commercial banks are likely to be more receptive than other lenders to restructuring or refinancing and therefore reject any hedge fund or alternative investment vehicle that wants to join the credit facility. As a result, borrowers and agents that have already begun the process of gathering lender support for an amendment, waiver or restructuring of the loan agreement are often reluctant to admit new lenders to the syndicate that are not supportive of the deal.
Regardless of the explanation, the increased difficulty in obtaining consents to assignments has been disruptive to the secondary market for bank loans. In many cases, substantial amounts of time pass before the borrower or agent responds to the consent request, and lenders will often be required to submit large amounts of confidential diligence materials for review. Parties to a trade that have used a standard Loan Syndications and Trading Association trade confirmation that cannot get approval for an assignment are obligated to then settle by participation, a settlement mechanism that can have many disadvantages for both parties.
In recent months we have observed consents withheld (or conditioned) in the following circumstances:
- A borrower refused to consent because it was concerned that a potential lender may not vote to approve a proposed restructuring.
- A borrower conditioned consent on a buyer’s agreement to approve a restructuring.
- A borrower conditioned consent on the seller agreeing to more stringent consent standards with respect to the remaining loans held by the seller under the credit facility.
- Borrowers relying on internal policies (not provided in the loan agreement) of denying consent to all assignments being made to hedge funds or, in some cases, to specifically designated hedge funds.
DISPUTE BETWEEN BORROWERS AND LENDERS LIKELY
Lenders who are unable to assign their loans because of a borrower’s or agent’s refusal to provide consent are concerned, and we believe that legal disputes are inevitable. Unfortunately, courts have not yet established parameters for when consent may be reasonably withheld with respect to the transfer of syndicated loans. Case law developed in other contexts has given rise to the principle that where a party has promised not to unreasonably withhold its consent, it may do so only for a “legitimate business reason” exercised in good faith. But what constitutes a legitimate business reason in this context is not clear. Borrowers that establish blanket policies limiting the types of entities that are acceptable or that refuse to consent absent a buyer’s commitment to vote a certain way will argue that they are acting to protect a legitimate business interest and, thus, are acting reasonably in denying consent.
Lenders will likely respond that the only reasonable criteria that may be used to evaluate prospective lenders are their credit-worthiness and their ability to otherwise meet their obligations as lenders. They will argue that borrowers are improperly attempting to use their consent rights to add borrower-favorable terms that were not part of the original loan agreement. For instance, the refusal to consent to an assignment merely because the new lender may exercise its rights under the loan agreement in a manner adverse to the borrower’s interest is not reasonable. The borrower has already granted voting rights to lenders and should not seek to alter the terms of the loan agreement as a condition of assignment. Similarly, by selectively excluding certain entities as lenders based on their actual or perceived response to the borrower’s proposed loan agreement amendments or waivers, the borrower is, in essence, using its consent right to push through an amendment of the loan agreement. Thus, the categorical refusal to provide consent to an assignment to hedge funds, in this view, would violate the terms of the loan agreement.
Prior to the recent financial crisis, the secondary loan market seldom faced the types of obstacles to the assignability of a loan that have recently begun to emerge. As a result, the line between reasonable and unreasonable withholding of consent has not yet been drawn, and litigation over these issues can be expected. Until clear rules emerge, loan market participants, when assessing the risks associated with transactions in bank loans, should take into account the increased risk that necessary consents will not be obtained. They should consider in advance that they may not be able to purchase or sell their loans by assignment.