Dr. Laurance Jerrold discusses appropriate ways to discontinue a patient’s treatment



Abstract

You want to terminate the doctor-patient relationship but are unsure of whether or not you are legally able to do so, and if you are, the proper way to go about doing it. The basics of forming and terminating the doctor-patient relationship are discussed along with the protocol for unilateral termination of the doctor-patient relationship by the doctor. This protocol consists of providing the patient with notice, basis, an adequate time to find substitute care, and being available for emergency coverage.  

The basis of the doctor-patient relationship

Any duty we owe patients is based on the existence of a doctor-patient relationship. This relationship is effectively nothing more than a simple contract where our patients seek professional services from a practitioner with the expectation that their professional needs will be addressed, hopefully resulting in a “cure” of some type. The doctor, on the other hand, consensually agrees to treat the patient, expecting to render such a “cure,” and to receive just compensation for the professional services rendered. If we continue to think of this relationship as a contractual one, then we must recognize that there are responsibilities and obligations on the part of each party.

Let’s look at the contractual “duties” that dentists owe to their patients:

•    The dentist and his/her staff will be properly credentialed, registered, and/or licensed.
•    Neither the dentist nor staff will practice beyond the scope of duties allowed by their respective licenses as defined by law.
•    The dentist will employ, appropriately train, and adequately supervise competent personnel.
•    The dentist will not use experimental procedures on patients nor will he/she undertake to perform procedures for which he/she is not qualified.
•    The dentist will keep current with scientific and technological advances within his/her field.
•    The dentist will obtain the patient’s informed consent prior to treatment and again later, should the clinical situation warrant it.
•    The dentist will be reasonably available for emergencies and will not abandon the patient.
•    The dentist will charge a reasonable fee for services rendered and will complete care in a timely manner.
•    The dentist will keep patients informed as to their clinical progress and will maintain appropriate and accurate records of the treatment rendered.
•    The dentist and staff will maintain the patient’s confidentiality regarding their clinical findings and treatment, as well as other personal information.
•    Appropriate consultations and referrals will be made.
•    The dentist and staff will comply with all regulatory rules and regulations pertaining to the scope of his/her practice as defined by the applicable law, and will abide by the Code of Ethics. Reciprocally, the following are the implied duties that patients owe their dentists:
•    All instructions will be followed, i.e., postoperative instructions, home care instructions, cooperation with treatment such as: wearing elastics, diet control, oral hygiene, etc.
•    Appointments will be kept.
•    Fees for services will be paid.
•    Patients will conform to generally accepted modes of behavior.
•    Patients will be truthful regarding their health history. Now that the rights and obligations of both parties are known, we can apply them to the doctor-patient relationship.

Establishing the doctor-patient relationship

It is quite easy to establish a doctor-patient relationship. It can occur in informal settings such as cocktail parties, sporting events, meetings, or gatherings of various types. All that is necessary is for a patient to ask for your opinion concerning a dental problem. If you offer professional advice intending the patient to rely on it, you may have just established a legally recognized professional relationship. If it is determined that such a relationship does exist, the diagnostic treatment or the professional opinion rendered, relating to the patient’s concern(s), will now be judged according to the appropriate standard of care. Whether or not you formally examined the patient, the fact that the activity occurred in or out of the office setting, or whether or not you charged a fee for your services, are all quite irrelevant.

Practitioners often wonder whether they are required to accept everyone who presents themselves to their office for treatment as a patient. No, you’re not! Courts have routinely stated that professional practitioners 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 or refuse services to any person based solely on the fact they might be members of one of many legally protected classes of people; for example, a patient’s race, religion, gender, sexual orientation, national origin, handicapping condition, etc. You are permitted to discriminate regarding the provision of services based on such criteria as limiting one’s practice to a particular specialty; the inability of the patient to assume the financial obligations associated with treatment; your not agreeing with the treatment demands of the patient; as well as a patient’s inability to abide by reasonably constructed office protocol, rules, and regulations. This holds true even when the person is a member of a protected class, because the basis for the discrimination is such that it would apply to everyone evenhandedly; however, the onus to prove that one engaged in a legal form of discrimination rests with the dentist.

Terminating the doctor-patient relationship

One of the more difficult risk management issues is terminating the dentist-patient relationship. This task can often lead to legal problems if not handled appropriately. 

The legally recognized justifications for terminating the doctor patient relationship 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 dentist decides to unilaterally terminate.

Examples of the first are when a patient’s employer purchases a new dental benefits plan for his/her employees and an employee’s current dentist is not a member, or when a patient moves out of the area. In both situations, the parting is usually amicable and not problematic. The second and third are both self-explanatory; however, the second carries with it the caveat that the patient should be made aware of the fact that the course of treatment has been completed. 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 is problematic to most practitioners. To unilaterally terminate a patient from your practice and not run the risk of being found to have abandoned the patient, the following protocol 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, and by regular mail using a certificate of mailing, as using both methods ensure that the patient was either notified or that a valid attempt to do so was made.

Second, this letter should inform the patient of the reason(s), the basis, upon which you are choosing to terminate your professional relationship. Returning to our contractual analogy, the legally accepted reason(s) for unilateral termination by the doctor is (are) based on the premise that the patient breached one or more of the five obligations they owed you.
If the patient is at a point in treatment such that continued care is still required, they should be strongly urged to seek it. State this in your letter to them and provide them with adequate time and assistance to seek substitute or alternative care. Give the patient notice of a specific time frame during which they need to seek out a new dentist, i.e. 45 days. This time period varies depending on whether one is a generalist or a specialist coupled with the geographic and temporal availability of other practitioners. You should inform the patient that during this period of time, you will be available only for emergency care, consultations, or to offer a referral if necessary.

On the other hand, you can never withdraw from offering professional services to a patient who is in extremis. A working definition of extremis is a patient of record who is suffering from significant swelling, is bleeding profusely, is complaining of excruciating pain, etc. In this case, you must stabilize the patient, deal with the emergent problem, and then proceed with the dismissal protocol.

Finally, inform patients in the dismissal letter that upon written request, a copy of their records will be forwarded to them or to a subsequent treating practitioner. While you may legally be entitled to charge patients a reasonable fee for the duplication of their records, make sure that you are not in violation of any specific state statutes related to this matter. 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 unilaterally 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 a patient may reticently accept being dismissed from your practice because of their actions or inaction, 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 or should not be said or 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 their financial status with your office, their behavior while a patient, their level of cooperation, etc. In other words, you don’t want to say negative things about the patient, even if truthful, because these facts might interfere with their ability to secure substitute professional care. All that has to be said is that there were administrative differences to which you and the patient could not agree upon sans the details.

It should now be obvious that if you ever plan to unilaterally terminate a patient from your practice, you need to have documented all instances relating to:

1.    the patient not following instructions or cooperating with their care.
2.    when the patient broke, missed, and/or cancelled appointments.
3.    behavior that was abusive and/or disruptive to the staff or to others in the office.
4.    when the patient was less than forthcoming regarding his/her medical status/history, or administrative inquiries.
5.    the patient’s failure to meet financial obligations to compensate you for the professional services you rendered, even if you’re in the middle of treatment. In that situation, the patient must be stabilized first before terminating the relationship. Once you dismiss someone from your practice, do not accept them back as a patient.

Abandonment of the patient

One question that always looms is, if a dentist dismisses 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:

•    Not giving the patient any further appointments or refusing to treat them before their course of treatment is completed without having a valid legally recognized reason to do so.

•    Not being available to a patient who requires follow-up therapy is also a form of abandonment. Thus, performing any procedure that has a high probability of postoperative negative sequellae, being unavailable to address a patient’s needs for whatever reason, and not providing for substitute or emergency coverage should the negative sequellae materialize are examples of abandoning a patient.

Finally, there is constructive abandonment. This occurs when doctors refuse to give the patient any more appointments, or extend or prolong treatment for nonclinical reasons; e.g., past due accounts. Abandonment is very difficult for the patient to prove if you follow the guidelines and protocol previously stated and have sufficient documentation to support your action. This brings us to the distinction between terminating the doctor-patient relationship and 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. The classic example of this occurs in the orthodontic setting. 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 appropriate 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 them from the practice, the doctor may follow the treatment rendered up to that point in time 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 must 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 has the option of terminating the doctor-patient relationship based on the patient’s failure to follow medically necessary recommendations.

The doctor-patient relationship is much like a dance. It takes two to tango. Every now and then, someone tries to lead when they should follow. Every now and then, someone gets their toes stepped on by their partner. Every now and then, the parties hear beats of a different drummer. When these unfortunate circumstances arise, it’s time to turn off the music, leave the dance floor, and wait for a better tune with a different partner.

Bio

Laurance Jerrold, DDS, JD, ABO is the President of Orthodontic Consulting Group and the former Dean and Program Director of the School of Orthodontics at Jacksonville University. He received his undergraduate and postgraduate dental education at New York University, his JD from Touro University, and his Certificate in Bioethics and the Humanities from Columbia University. Integrating over 30 years in the private practice of orthodontics with more than 25 years teaching dental risk management, coupled with 20 years in the practice of law, over 15 years teaching clinical bioethics, and 10 years in full-time academia and educational administration, Dr. Jerrold offers a unique and practical perspective on risk management for the dental practitioner and has been recognized nationally for his contributions to the field of dental risk management education. He has presented risk management courses for six of this country’s major dental malpractice carriers and has presented or written well over 200 lectures, articles, or multi-media presentations dealing with risk management and/or ethics for dental organizations nationwide.