THE DOCTOR–PATIENT RELATIONSHIP
The beginning of the doctor–patient relationship is when a professional duty attaches to the opinions and actions of the doctor. The basis of this relationship is in contract law. Contract law has three elements that must be fulfilled: the offer, the acceptance, and the consideration.
The offer is a proposal to enter into an agreement. The offer must describe the intent of the offer. In other words, it must describe the intentions of the person making the offer. In a doctor–patient relationship, the intention of the doctor is to provide services. It must have certain and definite terms. The doctor offers to provide services for an ailment in return for consideration, that which the person accepting the offer will give to the doctor for the services rendered. And it must be made to the person who can accept the offer. Making an offer to a person not able to accept the offer is meaningless. One of the building blocks of informed consent is based in contract law, as will be seen in Chapter 8.
The acceptance is the voluntary act of accepting the offer. It must not be coerced or made under duress. The person accepting the offer must have the authority to accept it and must have an understanding of what is contained within the offer. As you can see, the offer and acceptance is basically an informed consent discussion (as is discussed in Chapter 8). Once there is an agreement by both parties as to what the contract entails, it is called a “meeting of the minds.”
The consideration is the bargained-for exchange. It may include an act, a forbearance to act, or a promise to act. That act may include an exchange of money, goods, or services. For example, a patient may pay personally or through an insurance policy, provide the doctor with a service such as landscaping for the doctor’s office, or bring the doctor food. Without consideration, the offer becomes a gift to the person accepting the offer. Even if you decide to provide your services as a gift, you may still be sued for malpractice. Although your intentions were honorable to not charge the patient, you must still provide treatment within the standard of care. Being a nice person and helping another out, which most often happens when someone is in pain, does not preclude you from being sued.
TRUE CASE 13: Food for fillings
A dentist had an office in a rural area. It was not uncommon for him to be brought a pig or vegetables in payment for his dental services. It was not something that he did often, but when the patient was not able to pay with money, the goods provided were welcomed.
There are two types of contracts: express and implied. The express contract may be made orally or in writing. It is when the parties involved have a distinct, explicit, and understandable agreement as to what each party must do per the contract. An express contract must also be a direct, positive, and unequivocal agreement. Preferably, the contract should be in writing that includes all the terms of the agreement to prevent miscommunication and/or misunderstanding. The implied contract occurs when the actions or the conduct of the parties involved implies that the consideration has been mutually agreed upon. Many times, through the actions of one person, another may rely on those actions as an assent to proceed with treatment with the expectation of consideration (payment). The first person may not now say he or she did not agree. Implied contracts prevent unjust enrichment of the person who receives a service and then says he or she did not want it after the fact. For example, a patient may have an examination, be informed of the need for a crown, make several appointments (breaking the first appointment and rescheduling it), come in and sit in the operatory chair, open his or her mouth, get numb, have a tooth prepared, and have impressions taken and the crown cemented, only to say, “I never agreed to pay for it” (see True Case 21). In this situation, the patient was well aware of the treatment and made no objections when the treatment was provided. All of the signs, actions, or inactions of the patient gave rise to the presumption that the patient implied in fact to agree to the contract and receive treatment. Nothing needs to be said about the fee since the patient’s actions or inactions, inclu/>