No. For three reasons:
- these forms are not really informed consent forms, but attempts at advance liability waivers, tending to create evidence of a lack of informed consent;
- New York State has already enacted into law a broad liability immunity for dentists on COVID-19 patient care issues and such forms can compromise that immunity by creating potential contractual liabilities; and
- such advance liability waivers are unenforceable in New York and contradict classic good risk management principles.
In New York, because of the COVID-19 liability immunity law (see the NYSDA COVID-19 resource page update on this law at: https://www.nysdental.org/docs/librariesprovider37/default-document-library/nys-specific-guidance.pdf
for all health care providers, it is a particularly bad idea to create any form that could be construed by a clever attorney as a form of contractual agreement that generates an obligation separate and outside of the protection of the liability immunity statute or that effectively waives that immunity.
In addition, proper informed consent is not any piece of paper, but relies on the intelligent explanation of risks and benefits of treatment, risks and benefits of non-treatment, and reasonable options for alternative treatments and patient questions to be answered. As a classic rule of risk management for informed consent, it is never wise to list specific infections as a risk because it creates greater liability exposure for failing to list other specific infections that might occur. COVID-19 is no different in that respect.
The proper procedure is to do good pre-screening of patients with respect to COVID-19 and possible patient symptoms, obtain an updated patient medical history that specifically asks about COVID-19, and use the recommended informed consent forms approved by your malpractice insurer (see the NYSDA forms approved for use through MLMIC risk management at: https://www.nysdental.org/member-center/legal-resources/forms-and-documents-for-your-practice
To the extent your malpractice insurer recommends any particular COVID-19 form, the insurer bears the risk of defending you for use of such form and you can rely on the insurer’s approved form given that obligation of the insurer to defend use of its own recommended forms.