Way back when I was an orthodontic resident, I was told that using the Begg approach shortened treatment time, since tipping was more efficient and could be done a lot quicker than bodily tooth movement…hmm. During my residency, corticotomies were the new rage to accelerate treatment…hmm. Early on in my practice, I was told by supply companies and orthodontic gurus that brackets designed to incorporate both Begg and edgewise mechanics were the key to quicker treatment…hmm. As my practice matured, I was told that specific archwire sequencing with more time between appointments was the way to quicker results…hmm. Later on, I was told that using robotically constructed archwires was the avenue to quicker treatment…hmm. After that, I was told that there were certain self-ligating brackets that when coupled with extremely light-force archwires virtually guaranteed quicker finishes…hmm. Then, along came piezoelectric adjunctive procedures to speed things up…hmm. Currently, vibratory assistance and ultraviolet light waves are being studied as possibly achieving the Holy Grail of orthodontic therapy: quicker treatment…hmm. I hope I haven’t left anybody or anything out (I’m sure I have), but I think you all get the drift. It seems that every 5 to 10 years something or somebody comes along telling me how to complete orthodontic treatment in less time and, of no less importance, is letting the public know that I provide my services using these most modern up-to-date technologic advances, which in turn will significantly shorten the amount of time my patient must spend wearing those pesky little orthodontic appliances. Oh, by the way, it will benefit not only my patients but also my bottom line. Quick, look, down the street, get ready, here comes another bandwagon.

Today, most orthodontists are considered small business owners. As such, one thing we do associated with our business involves some type of marketing, either external or internal. Consider the following.

When a new patient calls the office for an initial evaluation, it triggers a succession of risk management concerns that are based on a myriad of both intraoffice and extraoffice communications. A general dentist informs a parent that her daughter might need braces. He gives her the name of several orthodontists in town, and mom now must do her due diligence, which entails asking her friends and neighbors whether they have ever used an orthodontist, and whether they know any good ones; of course, last but not by a long shot least, she goes to the Internet. Lo and behold, one orthodontist the general dentist recommended has this great Web site. The site shows off the office, extols the doctor’s virtues, has much information about orthodontics and the appliances used, includes testimonials from patients (some real, some not), gives a map to get to the office, and so on.

One tab on the home page directs mom to a section that is brochure-like in content and which from a legal perspective can be viewed as nothing more than an offer of one’s services extended to the public for the sole purpose of soliciting and inducing prospective patients to accept these services based on the statements made therein. In legal parlance, these statements can be viewed as inducements to enter into a contract. If it can be found that these photographs, statements, innuendos, and so on, form a material basis on which the patient accepts treatment, then it can also be argued that liability might attach for breaching the expectations expounded in the communication. Consider the following statements, all of which were found in various office brochures collected over the years that arguably can be claimed as false and misleading: “convenient flexible scheduling hours to suit your needs”; “all insurance plans accepted for payment”; “available for emergencies 24/7”; “our treatment is quicker, less painful, and carries less risk”; “our state-of-the-art facility exceeds all governmental rules and regulations regarding sterilization”; and “we promise to be prompt and respectful of your time.” Yada, yada, yada.

Consider also the following sentences derived from mission statements obtained from various practices that once again can be construed to promise far more than the doctor ever intended to deliver. “We are dedicated to providing you with the highest quality of orthodontics available today.” “Your total dental health is our highest concern.” “We will be in constant communication with all of your other health care providers during your treatment.” “With the advances in technology that today’s modern orthodontics has to offer, there is no reason that an ideal result cannot be achieved.” Keep these promises, masquerading as inducements, in mind because we will refer to them later.

Next, consider the role that video imaging plays in creating a specific expectation on the part of the patient and whether this form of inducement regarding obtaining a specific result can create a promise on which a patient has a right to rely. If this is so, then any result falling short of this promise might result in a breach of contract claim by the patient. Finally, consider the “promise” made by the office’s insurance coordinator—that a patient’s insurance will cover the cost of treatment. This scenario is most often encountered when providing services for temporomandibular dysfunction secondary to a traumatic event resulting in a whiplash type of injury. If reimbursement is not forthcoming and the patient can successfully claim that he or she was induced to accept therapy based on this unfulfilled expectation, it is easy to ascribe liability for the breach of this promise to the doctor for the patient’s unanticipated financial loss.

Look at it this way. What we have is a statement, otherwise known as a promise, made either orally or in some form of intraoffice or extraoffice communication by a doctor’s office, that the doctor intends to be taken seriously and at face value. The patient, then, induced by and relying on the statement, accepts treatment from the doctor based on the expectation that the promises will be fulfilled. If the expectations fall short, the patient now claims that various damages were incurred. Such is the nature of breach of promise claims in the orthodontic health care arena.

Let’s explore contract law for a minute. The legally recognized elements that must be present for a contract to exist are, first, some type of offer was made. An offer is when one party to the contract promises or offers to either do something or refrain from doing something. The second element is that there is some type of consideration, some type of value, a quid pro quo, that is given in exchange for the first party to either fulfill the promise made or refrain from undertaking the action in question. In other words, consideration is the value ascribed to fulfilling the bargained for obligation or act, or the promise made. Finally, there is acceptance of the offer by the second party. Acceptance of the offer can occur verbally or through deeds, such as performing the act bargained for. There must be mutuality of assent. In other words, the 2 parties had a “meeting of the minds” wherein they understood and agreed to the basic sum and substance of what was being done and what was being given in return. From an orthodontic perspective, it goes something like this. I offer to straighten your teeth for $5,000. You agree. We have an offer, a consideration, and an acceptance.

Does a contract have to be written? The answer is that some do and some don’t. The statute of frauds requires that the following types of contracts must be in writing: contracts for marriage (including prenuptials), contracts regarding the transfer of land (including mortgages, easements, and so on), certain contracts made by executors of a will, and contracts for the sale of goods amounting to $500 or more. Note that none of these applies to orthodontics. However, 2 types of contracts require a written contract in orthodontic practice. The first is when someone acts as a surety (a guarantor for the debt of another, a third party offering to pay for or guarantee the patient’s debt); and the second is the one that applies to the vast majority of orthodontic cases, contracts that cannot be completed within 1 year.

Contracts are interpreted when viewed as a whole by using the standard ordinary meaning of their words. One must look at what the parties intended; to do that, often the customs and verbiage associated with the business under scrutiny must be considered. Think about this when you use the terms “straighten one’s teeth,” “correct someone’s malocclusion,” “achieve an ideal result,” “create a beautiful smile,” and the other inducements we alluded to previously. More importantly and germane to this month’s theme would be verbiage along the lines of “it will take X months to correct Jane’s problem” or “using the blah, blah, blah technique (or appliance) will significantly shorten Billy’s time in treatment.”

Traditional contract law provides for a number of defenses when one party breaches the contract, some of which apply to orthodontics. The standard defenses are the following.

• 1.

  The contract violates some public policy concern or is illegal.

• 2.

  It is impossible to complete the contract, the doctor dies, the patient moves, and so on.

• 3.

  The contract lacks consideration. Many states require that additional consideration be paid for holding one to a specific promise.

• 4.

  The contract was based on a fraud. If fraud is present as part of a transaction, the contract can be canceled, and the defrauded party can receive full financial restitution. Fraud can be an intentional misrepresentation such as making a deliberate or false statement about a product or service. It can also be a negligent misrepresentation wherein a statement about a product or service is relied upon, yet the statement was made without investigating whether it was true. It can also take the form of concealing or suppressing the truth. Finally, it can take the form of making a false promise as described above, when a promise is made with no intention of fulfilling it, or any other act is undertaken to deceive or mislead the other party.

• 5.

  The contract contains a liquidated damages clause providing for a predetermined amount to be paid for having breached the contract. Because the damages have already been agreed upon, there is no point to the suit.

• 6.

  The contract was based on a mutual mistake, since there was no meeting of the minds. An example might be that you only intended to perform partial treatment, but the patient thought all orthodontic problems would be addressed.

• 7.

  One party made a mistake that was central to the formation of the contract, and the other party knew or should have known that the first party was acting based on the mistake. The patient is your brother-in-law, and he thought you would do the work gratis, but that was never your intention, and you let him think otherwise.

• 8.

  Both parties agree to change the initial terms of the contract in some way. This is often called an accord and satisfaction. For example, 2 years into treatment, the patient has had enough, the treatment is not finished, and the patient still owes an outstanding balance. However, the doctor is willing to forgive the balance owed, and the patient is willing to accept the limited results achieved.

• 9.

  One party lacked the capacity to contract. The patient was a minor whom you agreed to treat without parental consent, or the patient didn’t understand what he or she was doing because of limited ability with the English language.

• 10.

  The contract is unconscionable. Contracts are often found unenforceable if the bargaining power between the parties is grossly unfair. Although this does not apply to orthodontics, one usually sees this when the party in the “power position” takes advantage by forcing unfair conditions, clauses, or waivers on the other party.

Assuming that a breach of contract is found, several remedies are available to the nonbreaching party. The usual ones are (1) an award of damages when a judge or a jury decides on an amount; (2) specific performance requiring the breaching party to conform to the terms of the contract and fulfill the contractual obligations owed, but this is usually not done for personal services contracts such as orthodontics; (3) rescission, when the contract is cancelled; and (4) restitution, when the nonbreaching party is made whole. In courts of limited jurisdiction, small claims courts and the like, the main remedy is usually a monetary award.

One should now be asking, what kinds of monetary awards can be granted? The 2 most common types are compensatory and punitive damages. Punitive damages are rarely awarded in breach of contract cases. Compensatory damages reflect the monetary loss actually suffered by the nonbreaching party. These types of damages are divided into general damages and special damages. For example, let’s assume that you are found to have breached a contract with the patient because you failed to live up to certain promises made. The general damages could include the fees paid to you and any additional costs incurred by having another doctor finish the case. The special damages, also called consequential damages, are those not directly suffered but that naturally flow from the breach.

For example, a patient needs to open space for prostheses because of an aplastic lateral incisor. When the patient came, her midline was off, but the space was minimal because of dental shifting. The patient had been functioning quite well up to this point. However, she planned to get married in X months and wanted her smile to look great, so she came to see you. You assured her that because you used the speedo technique and appliances, her treatment would be completed in time for the nuptials. As fate would have it, and for various unfortunate circumstances and occurrences, this promise could not be kept. The patient, extremely angry and disappointed, now needed to have some type of temporary prosthesis placed for the ceremonies. She had her general dentist provide the necessary restoration, and she finished her orthodontic treatment with another orthodontist after returning from her honeymoon. She sues for breach of contract and wins. She might be awarded general damages for the amount she paid you and the amount she had to pay the new orthodontist to finish the case. In addition, she could also receive consequential damages for the cost of the prosthesis that she needed to tide her over as well as attorneys’ fees that she had to incur to make her whole. A long time ago, I was taught not to promise patients anything; if I was not going to adhere to that, then I had to make darn sure that the only promises I should ever make are those that I intended to keep.