The doctor-patient relationship

Malpractice is a form of negligence, and negligence is a type of tort. A tort is defined as a civil wrong based on a special relationship or implied by law. This special relationship is the doctor-patient relationship. To put it in perspective, here are a few other special relationships that the law recognizes: priest-penitent, innkeeper-guest, landlord-tenant, shopkeeper-invitee, common carrier-rider, teacher or school-student, parent-child, and so on. The law imposes certain duties and obligations on specific parties based on this special relationship. One unique difference between the doctor-patient relationship and most others is that ours is bilaterally consensual. The patient seeks out and subsequently authorizes the doctor to provide care, and the doctor agrees to accept and treat the patient; the patient is obviously seeking a cure, and the doctor is obviously seeking a fee. Courts have routinely held that we are not like innkeepers or common carriers, who are bound to accept all who seek our services. We have the right to accept or reject any prospective patient as long as any such discrimination is not because the person is a member of a legally protected class (race, religion, age, sex, sexual orientation, handicapping condition). This is evidenced by one of the earliest decisions that dealt with the doctor-patient relationship, around the turn of the 20th century. In this case, the patient believed that he was dying and sent someone to fetch the doctor. The messenger described the situation and tendered the doctor his fee; however, the doctor decided that for undisclosed reasons he did not want to treat the patient. He refused the fee and did not attend to the patient, who subsequently expired. The patient’s estate sued the doctor, and the court decided that the doctor owed no duty to the patient, noting in its opinion the following.

In obtaining the state’s license (permission) to practice medicine, the state does not require, and the licensee does not engage, that he will practice at all or on other terms than he may choose to accept. [Opposing] counsel’s analogies, drawn from the obligations to the public on the part of innkeepers, common carriers, and the like, are beside the mark.

Coldhearted? Possibly. But there it is: the doctor-patient relationship was and still is based on bilateral consent. Historically, it was the patient’s consent, and his or her authorization or permission to allow the doctor to proceed, that became the critical determinant. If this consent or authorization was not forthcoming, the courts viewed any medical intervention as battery. Prosser defined battery as “the intentional and unauthorized physical contact with a person by another. Assault is the apprehension of such contact. The gist of the action for battery is not the hostile intent of the defendant, but rather the absence of consent to the contact on the part of the plaintiff.” One hundred years ago, this concept was formalized when Justice Benjamin Cardozo penned his now famous words in the Schloendorff decision.

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages…. This is true, except in emergency where it is necessary to operate before consent can be obtained.

Consent in this context was a synonym for authorization. At this point, it is important to make the distinction between consent and informed consent, which will be discussed later. Consent or authorization is a threshold issue; without consent, there can be no doctor-patient relationship and hence no duty to adhere to any given or established standard of care. For consent to be valid, it requires the patient to present himself voluntarily, that he be mentally competent, and that he be of legal age. Voluntariness can be vitiated, for example, by coercion (a close cousin of inappropriate or improper; read those words as synonyms for fraudulent or misleading patient education). One who is indigent may be “forced” to accept the only form of treatment that is offered, again affecting the voluntariness of the consent. Mental competency can be challenged by such things as significant immaturity and or the inability to understand and comprehend the nature and consequences of the proposed treatment. The requirement that the patient be of legal age impacts orthodontics when in midtreatment our teenage patient reaches the age of majority and has significantly different views about remaining in treatment than do his parents, who initially authorized treatment and probably paid a handsome fee up to that point. To reiterate, the bottom line is that unless a doctor-patient relationship exists, no duty is owed to a patient to conform to any established standard of care.

For me, from a historical perspective, those receiving dental care were not originally looked on as patients but rather as chattel, the property of the doctor. For the first 50 years of our existence as an organized specialty, from 1866 to 1918, the National Dental Association, later to become the American Dental Association, referred to those to whom we ministered as our patrons, not our patients, in the Code of Ethics. In 1922, those we treated became patients, but their relatively autonomous status had not changed much. If a doctor found that a patient had been mistreated by a colleague, the new doctor had a “duty to institute correct treatment at once, doing it with as little comment as possible and in such a manner as to avoid reflection on his predecessor.” Section VI of the same document noted that “When a dentist is called in by a fellow practitioner, he should hold the discussion in the consultation as confidential, and under no circumstances should he accept charge of the case without the request of the dentist who has been attending to it.” Further evidence of this can be found in the 1928 Code, where in Section 8 it was noted that when a dentist is consulted by a patient whose regular dentist is unavailable, the only treatment to be rendered was to be palliative in nature and the patient obligingly referred back to the original doctor. It was deemed unethical to urge any treatment other than that currently recommended or embarked upon by the first practitioner. In Section 9, we find that a dentist being consulted by the patient of another could not “accept charge of the case without the consent of the dentist who had been attending to it, nor until he has positive evidence that the previous dentist is fully compensated for the service he rendered.” In short, the patient was now being held hostage by one colleague, who was required to be the protector of the other colleague’s pocketbook. This language was softened somewhat by the mid 1950s. In 1958, the Code recognized that a dentist was obligated to provide expert testimony when it was requested by “appropriate public officials.” This was finally changed in 1974, when it was noted that “[A] dentist may provide expert testimony when that testimony is essential to a just and fair disposition of a judicial or administrative action.”

It wasn’t until the 1979 Code that the doctor-patient relationship was recognized professionally for what it was—a bilateral consensual relationship. Principle 1 dealing with service to the public and subsection 1A dealing with patient selection recognized a doctor’s right to be selective in whom he accepted as a patient as long as the basis of discrimination was not because the patient was a member of a protected class of persons. Section 1B noted that dentists were obligated to give patients copies of their records on request. Section 1D elaborated a doctor’s responsibility to make arrangements for the emergency care of his patients. Section 1E recognized a patient’s rights to affirmatively select a consultant practitioner as his provider of care. Section 1G required that patients be informed of faulty treatment by another, and practitioners were obligated to report repeated instances of such substandard care to the appropriate reviewing agency. From the perspective of our Code actually reflecting, to a relatively appropriate degree, the legal standards of the day, it wasn’t until 1979 that we truly entered the modern era. Finally, in the 1994 Code, it was recognized that practitioners could no longer hold a patient’s records hostage because of an unpaid account.

The 1997 Code had an entirely new format and reflected the contemporary bioethical principles still used today: patient autonomy, nonmaleficence, beneficence, justice, and veracity. The current recognition of the doctor-patient relationship was in full swing. Section 1.A stated that we must “inform the patient of the proposed treatment, and any reasonable alternatives, in a manner that allows the patient to become involved in treatment decisions.” Section 1.B.2 discussed confidentiality and the need to seek legal advice regarding termination of the doctor-patient relationship if the patient withheld permission for release of certain protected health information and the doctor deemed that it was in the patient’s best interest to give that information to another treating practitioner. The 1998 Code was the first to address patient abandonment in the context of the doctor-patient relationship; Section 2.E noted that doctors should not discontinue treatment of a patient without giving the patient ample opportunity to seek substituted care. Sections 5.F.1 and 5.F.2 prohibited inducing the public to use a practitioner’s services when such inducements were based on false or misleading statements in a material respect. Although the drafters of the Code perceived this to be an issue of veracity, it could also be argued that fraudulently inducing patients to accept a proposed treatment interferes with their autonomous ability to grant consent, thus questioning the establishment of a viable doctor-patient relationship.

Five years later, the Code addressed another aspect of the doctor-patient relationship in Section 2.G that dealt with doctors establishing personal relationships with their patients. While noting that such a relationship could impair one’s professional judgment or exploit the confidences of a patient, the drafters of the document were looking at it from the perspective of nonmaleficence. A better perspective might have been to see it as an activity having the potential to negate a patient’s autonomy relative to the issue of consent.

Regardless of how long it took to get there, it appears that our profession had finally recognized the important aspects of the doctor-patient relationship from both the legal and the ethical perspectives.

Advertising

Beginning with the first Code in 1866, Section 3 noted that it was unprofessional to resort to public advertisements, cards, handbills, posters, or signs calling attention to peculiar styles of work, low prices, special modes of operating, claims of superiority, publishing reports of cases or certificates for the public press, or going house to house to solicit or perform operations, nor could dentists circulate or recommend nostrums.

The next substantive change did not occur until almost 60 years later. In the 1924 Code, Article 2 used a “laundry list” approach to address specific complaints of the day. It was unprofessional to use letters, handbills, posters, circulars, cards, signs, stereopticon slides, motion pictures, telephone, radio, newspapers, or any kind of printed or written publication or any other device or means for the purposes of (1) advertising superiority in any form; (2) advertising fixed prices when the nature of the procedure requires that they be variable (advertising fixed fees for specific procedures was allowed); (3) advertising statements that might deceive or mislead the public; (4) advertising under a corporate, company, association, parlor, or trade name; (5) advertising special methods of practice; (6) publishing reports of cases or certificates in the public press; (7) employing, associating with, or making use of advertising solicitors or press agents; and (8) giving guarantees or warrantees to induce patronage.

It was permissible to use professional and appointment cards to announce one’s name, title, address, phone number, and specialty if any, and to announce these in a newspaper. One could also mail, but only to patients of record, announcements of openings, location changes, and the intended absence from or return to practice.

In 1928 came the new expanded Code, and advertising, directories and announcements, cards in press, and specialists each had its own article in the Code. Along with the previously stated advertising prohibitions, it was unethical for a dentist to announce his or her name in any city, commercial, telephone, or other public directory or directories in public or office buildings using display type or any type that was dissimilar in size, shape, or color to that used by other dentists listed in the same directory. In addition, one could not be listed as a specialist in any directory when such a listing would impart the impression of superiority to those who were listed only as dentists. By this time, the American Board of Orthodontics was only months from being established, and one could easily perceive the prohibition relating to specialty notification as a preemptive strike to protect the status quo vis-a-vis the effect (financial?) that specialization might have on the general dentist.

The custom of inserting cards in the local press or in programs for special events or in theaters was allowed but only if done in modest size and type. This was not agreeable to all, so the following note was inserted into the Code: “This Association believes such custom to be unbecoming of professional men [and] urges [its] members to abstain from this practice.”

In addition to professional cards, it was permissible to use diagrams for designating needed radiograms or operations. Regular cards, letterheads, bill heads, envelopes, and so on could not have special cuts or distinctive lettering. Finally, it was permissible, but only if done modestly, to have lettering indicating one’s name, title, and profession on office doors and windows, but one could not use large display signs, peculiar lighting, objects, characters, or anything that imitated the unethical methods of the charlatan.

The next major changes did not occur until the 1944 Code. Gone was the laundry list of impermissible forms of advertising; in its place, the following paragraph was substituted.

Dentists should strive for reputations that are based on good judgment, professional skill and fidelity with fellow practitioners and the public. This end cannot be forced as it is the result of time combined with excellence of conduct and abilities. Advertising is inconsistent with acceptable professional behavior and if used not only reflects on the quality of the individual employing such measures but has the far more consequential effect of lowering the entire profession in the public’s esteem. It is unprofessional to solicit patients. Advertising in any form be it individual, group, or institutional is in itself evidence of such solicitation.

For cards, letterheads, and announcements, the restrictions regarding the details of type and size were omitted; instead, they should be “in keeping with the custom of dentists in the community.” Professional announcements were prohibited, except for notifying existing patients and fellow practitioners about changes in location, discontinuance, changes from general to specialty practice, or reopening after prolonged absence.

Directory listings were now controlled by local dental community standards, which included allowing or prohibiting the announcement of specialty status. As to office doors, lettering, and signs, “any type that forcefully attracts attention is not good professional practice as it reduces respect for the user and lowers public respect for the profession.” The edict also noted that signage and window lettering were permitted to vary from rural communities to neighborhood districts and to urban office buildings.

In 1979, there was a major upheaval regarding advertising. The profession was under a federal mandate to follow the law as outlined in the Bates v Arizona State Bar decision. Advertising was allowed, but it could not be false or misleading in any material respect. Trade or assumed names for one’s practice likewise could not be false or misleading, and a doctor’s name after he had left practice could not be used for more than 1 year. Specialists had to use the phrase “specialist in or practice limited to,” one had to meet all educational criteria for advertising specialty status, and if one specialized, his or her practice had to be limited to that specialty. Finally, although a general dentist could provide specialty services, he could not imply that he was a recognized specialist, had to note that he was a general practitioner, and could not use the phrase “practice limited to.” The Code noted that its purpose was to uphold and strengthen dentistry as a profession. The component and constituent societies were free to make additional rules and interpretations as long as they did not conflict with the provisions of the Code to enable them to more faithfully serve the traditions, customs, and desires of the local membership.

From both a historical and a practical perspective, anyone who will engage in professional advertising should understand the facts and decision in the Bates case. A summary of the facts shows that the plaintiffs opened a legal clinic to provide low-cost services. They relied heavily on paralegals, only did routine work using standardized forms, computerized and used economies of scale, and ran ads to increase volume by stressing low fees. This was amazingly analogous and applicable to high-volume, multichair, expanded-duty orthodontic offices.

The defendants countered with 6 arguments about why advertising should be restricted: (1) advertising created an adverse effect on professionalism, (2) the nature of advertising is inherently misleading, (3) advertising would have an adverse effect regarding the administration of professional services, (4) advertising has many undesirable effects, (5) advertising has a negative effect on the quality of service, and (6) there are difficulties relating to enforcement. Looking at these individually gives tremendous insight into the court’s rationale in fashioning its decision to strike down advertising prohibitions that had existed up to that date. I have taken the liberty of analogizing the opinion to dentistry.