Dr. Laurance Jerrold discusses the legal aspects of the dentist-patient connection
There is no duty owed a patient unless a doctor-patient relationship has been established. This article deals with the establishment of this relationship as well as how to legally and ethically terminate it. The related issues of abandonment and discontinuing treatment are also addressed.
A tort is a civil wrong, based on a special relationship or implied by law. In orthodontics, this relationship is the one between the doctor and the patient that forms a pseudo contract, wherein a patient seeks professional services from a doctor with the expectation that their professional needs will be addressed, hopefully resulting in a “cure” of some type. Doctors, on the other hand, consensually agree to treat the patient expecting to affect such a “cure” and receive compensation for professional services rendered. Like most contracts, there exist responsibilities and obligations on the part of each party. The real and implied “contractual “duties” that orthodontists owe their patients are:
- The doctor and staff will be properly credentialed/licensed/registered.
- Neither the doctor nor staff will practice beyond the scope of duties allowed.
- Employees will be appropriately trained and adequately supervised.
- Experimental procedures will not be performed without patient consent.
- The doctor will not perform procedures for which he is not qualified.
- Doctors will maintain their skills through continued dental education.
- Doctors will obtain the patient’s informed consent prior to treatment.
- Doctors will be available for emergencies and will not abandon the patient.
- Doctors will complete care in a timely manner.
- The doctor will keep patients informed as to their clinical progress.
- Doctors will keep appropriate and accurate records of treatment rendered.
- The doctor and staff will maintain the confidentiality of the patient.
- Appropriate consultations and referrals will be made.
- The doctor and staff will comply with all regulatory rules and regulations pertaining to their scope of practice as defined by applicable law.
- Doctors will abide by the Code of Ethics.
However, there are only five duties and obligations that patients owe their doctors; they are:
- All instructions regarding treatment will be followed.
- Appointments will be kept.
- Fees for services will be paid.
- Patients will conform to generally accepted modes of behavior.
- Patients will be truthful about their health history and administrative inquiries.
- Establishing the doctor-patient relationship
It is quite easy to establish a doctor-patient relationship. It can occur at informal settings such as a cocktail party or a sporting event. If you offer professional advice intending the patient to rely on it, and he/she does so, you have just established a legally recognized professional relationship with the patient requiring you to adhere to the standard of care regarding the diagnostic or professional opinion rendered. This is regardless of whether or not you formally examined the patient, whether or not the patient was seen in the office, or whether or not you charged a fee for your services.
Must we accept everyone who presents themselves to our offices for treatment as a patient? No, you do not! Courts have routinely stated that doctors are not in the same category as common carriers or innkeepers, and need not open their doors to all who seek their services. However, you cannot discriminate against accepting patients based solely on the fact they might be members of one of many legally protected classes of people, such as a person’s race, religion, gender, sexual orientation, national origin, handicapping condition, etc. It is legal to discriminate regarding the provision of services based on such criteria as limiting one’s practice to a particular specialty or subspecialty; the inability of the patient to assume the financial obligations associated with treatment; as well as a patient’s inability to abide by reasonably constructed office protocol, rules, and regulations, etc. even if the patient is a member of a protected class since the discrimination is such that it would apply to everyone evenhandedly.
Terminating the doctor-patient relationship
One of the more difficult risk management issues is terminating the dentist-patient relationship and often leads to legal problems if not handled appropriately. There are five recognized legal justifications for terminating the doctor-patient relationship; they are:
- both parties agree to end it;
- the patient is cured, or a course of treatment is completed;
- the dentist or the patient dies;
- the patient decides to unilaterally terminate the relationship;
- the dentist decides to unilaterally terminate the relationship.
An example of the first is when a patient moves out of the area. The second and third are both self-explanatory. In the fourth scenario, the patient essentially abandons the doctor, usually over fiscal, administrative, management, or personality issues, as well as unhappiness with the results of the treatment rendered. However, it is the last one that causes practitioners the greatest degree of consternation. In order to unilaterally terminate a patient from your practice and not run the risk of abandoning the patient, the following procedure should be followed.
First, the patient must be given sufficient notice of the doctor’s intent to withdraw as the practitioner of record. A letter to this effect should be sent both by certified mail, return receipt requested, as well as by regular mail using a certificate of mailing. Using both methods ensures that the patient was either notified or a valid attempt to do so was made.
Second, this letter should inform the patient of the reason(s) you are terminating your professional relationship with him/her; essentially that he/she breached one of the legally accepted obligations he/she owed you stemming from the doctor-patient relationship. Next, if the patient is at a point in treatment such that continued care is still required, he/she should be strongly urged to seek it. State in the letter that you will provide him/her with adequate time and assistance to seek substitute or alternative care for a specific time frame during which he/she should seek out a new dentist, i.e., 45 days, and that during this period of time you will only be available for emergency care, consultations, or to offer a referral if necessary. Finally, inform the patient that upon request, a copy of his/her records will be forwarded to him/her or to a subsequent treating practitioner.
While you may legally be entitled to charge the patient a reasonable fee for the duplication of his/her records, various states address this by statute. A good rule of thumb is that the fee for copying X-rays, models, etc., should not exceed the original cost of each record. It is important to appreciate that when you are attempting to terminate the doctor-patient relationship, it may not be prudent to place a financial stumbling block such as a records duplication fee in the patient’s way. While patients may reticently accept being dismissed from your practice because of their actions, attempting to collect a fee for record duplication may be a sufficient enough impetus for them to consider retaliatory litigation for any perceived wrong, which up to this point, was not that important.
This brings us to a tangential factor relating to what should be done when a potential subsequent treating practitioner contacts your office to find out the reason(s) behind the patient seeking a new doctor. Neither you nor your staff should badmouth the patient regarding such matters as his/her financial status with your office, his/her behavior while a patient, his/her level of cooperation, etc., even if truthful, because these facts might in and of themselves interfere with the formation of a new, substitute doctor-patient relationship. Prudent risk management dictates that you merely state that there were administrative differences to which you and the patient could not agree upon, sans the details.
Abandonment of the patient
One question that always looms is that if a doctor does dismiss a patient from his/her practice, doesn’t that act in and of itself constitute the tort of abandonment? The answer is a qualified no. Abandonment may be defined as first, not giving the patient any further appointments or refusing to treat him/her before his/her course of treatment is completed without having a legally recognized reason to do so. The exception is the patient who is in extremis. Thus, unless a patient of record is bleeding, is suffering from significant swelling, is in excruciating pain, etc., you have a legally recognized right to terminate the doctor-patient relationship upon providing proper notice and following accepted protocol. The second definition is not being available to a patient who requires continued or follow-up therapy such as being unavailable for whatever reason and not providing for substitute or emergency coverage. Finally, there is a doctrine called constructive abandonment that occurs when doctors refuse to give the patient anymore appointments; or, they extend or prolong treatment for non-clinical reasons such as past due accounts. Terminating the doctor-patient relationship is not the same thing as discontinuing treatment.
Discontinuing active treatment
Doctors have the unfettered right to discontinue active treatment if, in their best judgment, the patient’s best interests are served by doing so. This can be done without running the risk of having abandoned the patient. Classic examples of this are: if during active treatment, the doctor discovers negative sequellae occurring such as decalcifications, periodontal breakdown, root resorption, caries, TMD, etc. The doctor may decide that it is in the patient’s best interest to discontinue active treatment rather than to stay the course, risk exacerbation of the negative sequellae, and subsequently cause severe injury to the patient. In this circumstance, treatment is discontinued, but the patient continues to remain a patient of record. Rather than dismissing him/her from the practice, the doctor may follow the patient with the intention of re-initiating treatment once the patient’s status warrants the resumption of care; or, if treatment has to be stopped indefinitely or permanently, a decision has to be made to forego or employ a specific retention modality. In other words, the doctor-patient relationship is still ongoing. The patient must of course give his/her consent to the discontinuation of treatment. If he/she refuses, then the doctor always has the option of terminating the doctor-patient relationship based on the patient’s failure to follow medically necessary recommendations. In summary, it is the existence of a doctor-patient relationship that gives rise to the duty to adhere to a given standard of care.