Come back to me

Okay, you treat a patient, and the result is less than both you and the patient wanted. The patient now needs either some form of remedial treatment or even re-treatment. The question is this: is the patient obligated to return to you, to give you the opportunity to “fix the problem,” or is she free to go to someone else? Justus v Rosner , Case No. 255A17 (Sup. Ct. N. Car., 2018) addresses this issue.

The patient had experienced neurological symptoms for many years. The defendant suggested performing a laminectomy to decompress her spinal cord. The patient underwent the surgery and did not do well posttreatment. The defendant recommended a second surgical procedure and performed it 3 months later. The patient did not return to the doctor’s office, stating that she was afraid to return to the doctor and that her insurance was no longer accepted by them. During the following 2 years, the patient saw numerous other physicians for a chin-on-the-chest deformity that she claimed was a result of the defendant’s treatment, all without resolution. She filed suit against the defendant, claiming negligent treatment, lack of informed consent, fraud, loss of consortium, and wanton and willful conduct on the part of the defendant—essentially claiming that the services he provided were unwarranted, unnecessary, and experimental, and that he failed to inform her of the novelty and risks of the procedures. During the initial trial, several of the defendant’s experts opined that the chin-on-the-chest deformity could have been prevented or mitigated if the patient had returned in a timely fashion to the defendant who had performed the surgery, because he was intimately familiar with the procedure that was performed and thus had the best chance to resolve the problem, as opposed to other practitioners.

The jury determined that the defendant was liable for his negligent treatment of the patient and awarded $512,162 in damages, but they also decided that the award should be reduced by the amount of $512,161, thus awarding the plaintiff $1 because of her “unreasonable failure . . . to avoid or minimize her damages.” The plaintiff obviously moved to set aside the verdict and alter the judgment on several grounds. Essentially, it came down to her claim that the jury was under a misimpression that she had an obligation to return to the defendant for purposes of mitigation as opposed to being able to see whomever she wanted regarding any needed follow-up or remedial care. The court agreed with the plaintiff and reinstituted the award, finding that the plaintiff acted in a timely manner in seeking alternate follow-up or remedial care, noting, “[p]atients have no legal obligation to seek medical treatment from any particular health care provider.” The defendant naturally appealed.

In his appeal, the defendant claimed that the reduced award should not have been reversed, that the plaintiff was contributorily negligent by not returning to him for treatment, and that the trial court erred in also awarding the plaintiff court costs totaling over $175,000. He moved for a new trial. The Appellate Court found for the plaintiff except regarding the claim for court costs and remanded for a new trial on that issue. The Supreme Court decided to look at all of the issues. We will only examine the issue pertaining to contributory negligence, and whether or not the plaintiff had an obligation to return to the treating doctor.

The court found, from the facts and testimony presented, that first, the defendant argued that the plaintiff failed to mitigate her damages by not returning to him in a timely manner and that by failing to do so, the plaintiff allowed her condition to worsen. Second, that this argument was supported by the fact that all 4 of the defendant’s experts testified that the plaintiff’s condition could, more likely than not, have been ameliorated, had she received prompt follow-up care from the defendant. Third, that the defendant’s expert witness’s testimonies were merely cumulative in nature and improperly influenced the jury by implying that the plaintiff had a duty to return to the defendant. Fourth, that there was no credible evidence that the plaintiff delayed her attempts to receive remedial care and that her activities in this regard were within reason.

The court commented that in North Carolina, a plaintiff has an affirmative duty, insofar as attempting to mitigate damages is concerned, to

. . .exercise reasonable care and diligence to avoid or lessen the consequences of the defendant’s wrong. If [s]he fails to do so, for any part of the loss incident to such failure, no recovery can be had. This rule is known as the doctrine of avoidable consequences or the duty to minimize damages.

The court noted in no uncertain terms, that “[p]atients have no legal obligation to seek medical treatment from any particular health care provider.” In addition, the court stated that any testimony implying otherwise is an inaccurate and misleading statement of the law. However, the patient does have a duty, as stated above, where remedial treatment has the potential to mitigate any injuries sustained, that such care must be obtained in a timely manner. The plaintiff’s award was reinstated in full.


I have heard dozens of times over the years, doctors lamenting how the patient never returned to them or gave them the opportunity to correct whatever it was. They believed that they were somehow entitled to have the first shot at addressing whatever the negative outcome was. From an ethical perspective, this concept can be argued either way. However, from a legal one, it is very simple. There are 5 acceptable legal bases on which to terminate the doctor-patient relationship. In no particular order, the first is that both parties agree to end it for any number of reasons. The second is that the patient is cured or treatment is no longer needed. The third is because of the death or permanent disability of the doctor; I guess the death of the patient also qualifies. The fourth is when the doctor wants to terminate the doctor-patient relationship unilaterally. Finally, we have a situation where the patient wishes to terminate the relationship unilaterally by dismissing the doctor.

Practitioners must understand that the doctor-patient relationship is both bilateral and consensual in nature. The essence of this relationship was adroitly articulated in Hammonds v Aetna Casualty , 243 F Supp 793 (N.D. Ohio 1965) wherein the court stated, “A doctor and patient enter into a simple contract, the patient hoping that he will be cured and the doctor optimistically assuming that he will be compensated.” That’s it, folks; it’s just that simple. At some point, any point, if the patient wants out, he or she is free to walk. Patients don’t owe us anything, except our fee.

That doesn’t mean that they don’t have to act as a legally recognized “reasonable patient” should act. Under the doctor-patient contract, patients have obligations that they owe us. Again, in no particular order, they are that first, they will be truthful and forthcoming regarding all valid administrative and clinical inquiries. Next, that they will pay the doctor’s fees for services rendered. Three through 6 all relate to the issue discussed in this article; they are that all instructions will be followed, all appointments will be kept, they will not dictate inappropriate treatment, and that they will conform to accepted modes of behavior.

A patient who experiences a negative sequela of some type, and who is told that remedial or follow-up treatment of some sort is required, has a duty to follow through with the recommendation. This duty encompasses following instructions and keeping appointments. The patient is also obligated to do so in a timely manner with a qualified individual to address whatever the issue is. This encompasses the tenets of conforming to accepted modes of behavior and not inappropriately dictating or directing treatment.

The patient, however, is not obligated to return to us. Switch seats for a moment. You are the patient. Something went wrong. You went back to your doctor, and he tried to fix it. He was not successful. How many of you will keep returning to the same doctor? Alternatively, is it really unreasonable for you to choose to go to a new doctor? Of course not. It might be unreasonable to try to treat yourself, wait an unreasonable amount of time hoping it will get better on its own, or engage the services of an unqualified person to address whatever it is. In the end, however, you have the autonomy to seek out appropriate treatment elsewhere.

One of the unfortunate side effects of being an elite health care practitioner is that our status as such is often accompanied by a larger-than-necessary professional ego. For some of us, this albatross often gets in the way of being able to separate the chaff from the wheat. No, we don’t own our patients, and they are free to go to whomever they choose, whenever they choose to do so. As Cher said to Nicholas Cage in the movie Moonstruck , “Get over it.”

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Jan 7, 2020 | Posted by in Orthodontics | Comments Off on Come back to me
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