In the beginning

In the beginning . . . The opening words of this month’s column are also the first words of the Old Testament. It is in the beginning that stories start. It is in the beginning that the foundations of education build upon themselves. As for orthodontic risk management, it is in the beginning that the doctor-patient relationship is formed. This month’s question is when exactly does this relationship start?

A patient is referred to your office for a complimentary screening, not at all unusual. At this visit, you tell the patient that he or she either is ready or, for any number of reasons, is not ready to begin treatment. If the patient is ready, depending on your policies and protocols, you will either take a complete set of records or reschedule him or her to have that done soon. I know, I know, there are a whole bunch of 1-step guys and gals out there who look at a patient, say that he or she is ready to go, take a quick pan to tell the patient what the general plan of attack is, and do the financial consult. If the person is ready to rock and roll, you will either complete the records at that appointment or reschedule him or her to have it done. I’m not saying that you are right or wrong in doing that; I am merely addressing the rest of the clinical orthodontic world to make a point.

Assuming for the moment that the patient is not ready: too many deciduous teeth, caries needs to be addressed, perio needs to be taken care of, or whatever. Most of that can be determined from a clinical screening examination without the need for models, x-rays, probings, and so on. After you refer the patient out, put him or her on recall, and so on, the patient is, at some point soon, given an appointment to return to have comprehensive records taken. On the other hand, if you are a 2-step guy or gal, you screen the patient, and maybe give ballpark ideas of what treatment might entail and the fee or a range for the fee, all the while saying that you need to do a complete clinical examination before treatment can begin and a definitive fee and time frame quoted. So, at what point along the time line from new contact phone call, to screening, to records, to case consultation, to agreeing to your fee, and to actually placing the appliances, does the doctor-patient relationship begin?

This is probably the longest lead-in I’ve ever written but probably also one of the most important, because when the doctor-patient relationship is formed becomes the time point at which you become beholden to the patient to practice within a certain standard of care. It is not until you have accepted that person as a patient, and it is not until the patient has agreed to all of your “terms,” that a doctor-patient relationship is established. We are not talking about emergencies, Good Samaritan acts, contractual obligations, and so on. We are talking about everyday, bread-and-butter, private-practice clinical orthodontics. Gross v Burt , 149 S.W.3d 213 (Ct. App. Tex, 2004), provides the answers.

The plaintiff was examined in the hospital shortly after birth. The examination showed that he might have retinopathy of prematurity. The pediatric ophthalmologist, as per hospital policy, gave the parents a letter saying that he might have retinopathy of prematurity, that it can cause severe optical problems if not addressed as soon as they were out of the hospital, and that an appointment should be made at the doctor’s private office as soon as possible, blah, blah blah. This is not too unlike a patient who is referred to us. We do our screening and say that he or she is ready for comprehensive records. We recommend scheduling an appointment for the records in order for us to arrive at a differential diagnosis, determine a treatment plan, estimate how long treatment will take and what the fee will be, and discuss how it is to be paid, yada, yada, yada.

In Gross , the parent called the doctor’s office for an appointment, then cancelled the appointment, missed the next scheduled appointment, and ultimately went to another doctor at a later date. At that point, she was informed that, because of the delay, her son would have severe vision impairment for his lifetime. She sued the first doctor, claiming that he had an obligation to follow up with her after her missed appointments and remind her of the seriousness and the timeliness of the situation. If that had been done, her son would have received the necessary treatment soon enough to stave off what eventually transpired. The defendant doctor countered with the argument that the boy was not a patient of record, no clinical examintion had been performed, and no definitive treatment plan was ever developed for him. In addition, yes, he did have an office policy that all existing patients who missed appointments were to be contacted for rescheduling, but since he was never really a patient . . . . So, I ask you again, when does the doctor-patient relationship begin?

Let’s move back to orthodontics for a moment and return to my original question. If you saw a patient for a screening, recommended that he undergo orthodontic treatment, made a records appointment that he cancelled and rescheduled, saw that he missed the next appointment, and never heard from him again until you received a summons claiming negligence because the erupting canine ate away three quarters of the root of the adjacent lateral incisor, and this was not discovered until the patient ultimately sought treatment from another doctor somewhere else much later. . . was a doctor-patient relationship in effect that would give the patient standing to sue you?

The appellate court beautifully laid out both the requisites for such a suit and the applicable law, noting, first, that a plaintiff has the obligation to prove by a preponderance of the evidence that the doctor was under a duty to conform to an established standard of care, that he breached this duty, that the patient suffered an injury in fact, and that the breach of the duty owed was the proximate or direct cause of the injury suffered. The court then stated that any duty owed can be triggered only by an established doctor-patient relationship or an affirmative action of some type that would imply the existence of this relationship. Next, a doctor-patient relationship can be established by virtue of the express or implied consent of the physician to agree to treat the patient. Once this is done, a pseudocontract “arises from the acts and conduct of the parties, it being implied from the facts and circumstances that there was a mutual intention to contract.” Next, the doctor-patient relationship does not require all the formalities of a contract; however, “[o]nce such a relationship exists, . . . the physician then owes the patient a duty to treat him or her with the skills of a trained, competent professional, and a breach of that duty may give rise to a malpractice action.” In addition, even the existence of a prior relationship does not presume that such a relationship is continuing; conversely, agreeing to see a patient at some future time does not establish a current doctor-patient relationship. Finally, the court noted that the patient has the burden of proving the existence of such a relationship and, hence, the existence of some duty on the physician’s part.

The legal issue in this case was for the court to determine whether the letter recommending treatment and the subsequent making of an appointment were acts sufficient enough to constitute a doctor-patient relationship. To put it in orthodontic terms, once you have performed a screening, recommended treatment, and given the patient an appointment, does a doctor-patient relationship exist?

In fashioning its decision, the court looked at other cases and noted that, when a physician initially screens a patient or is asked to consult on a case and receives a description of the patient’s symptoms and findings by the referring physician, the referred-to physician does so with the intention of not only giving the doctor who referred the patient an opinion, but also evaluating whether he wishes to undertake the patient’s treatment, but not necessarily making a definitive diagnosis or determining an exact course of treatment at that time. In addition, the court noted that, as far as determining the status of the doctor-patient relationship, factors to be considered are whether the doctor has actually diagnosed the patient as a candidate for a particular treatment and whether the doctor expressly or impliedly accepted the patient to administer that treatment, and whether the patient has accepted the recommendations. In addition, section 50.6 of the Texas Pattern Jury Charges notes the following:

A physician patient relationship does not exist when either the physician or the patient has terminated the relationship. A patient may terminate the relationship at any time. The physician may terminate the relationship at any time if reasonable provision for adequate medical care is made or if the patient is not in need of continuing medical care.

The court finalized its holding by stating that:

Under the facts, the examination of a patient . . . by a consulting or referred specialist physician does not create a continuing duty upon that physician to insure follow-up is maintained once the physician has supplied the primary or referring physician with the results unless the patient and the referred specialist physician take some further affirmative action to continue the relationship. . . . [W]e likewise hold that scheduled-but- missed appointments are insufficient to create or continue a duty, even when combined with . . . letters such as “The Dear Parent” letter.


We are often asked to provide “curbside opinions” by both colleagues and prospective patients. The venues for the services run the gamut from innocuous conversations at social events to discussing junior with his or her parent on the soccer field. The bottom line for me is that, if a patient or parent asks you for an opinion regarding treatment or about your thoughts on using 1 appliance vs another, and if you render your opinion with the intention of the patient or parent relying on and ultimately acting on it, and the patient actually does rely on and act on that opinion to their detriment, then you have established a doctor-patient relationship. This now obligates you to conform to the standard of care that governs the situation.

It doesn’t matter whether you formally examined the patient, or whether the examination was cursory or detailed to whatever extent; it doesn’t matter where the conversation or examination, if any, took place (in or out of the office), and it doesn’t matter whether a fee was charged. You provided a professional opinion on which you expected that patient to rely and take action. That is usually enough to establish a doctor-patient relationship. Read those words carefully.

On the other hand, if you say that “generally, the rule of thumb is . . . ” or “usually the decision to do x, y, or z depends on . . . ” but, in either case, “before anything definitive can be established, complete records must be acquired,” this is a different story. If the social setting is such that you feel obligated to tell the patient or parent something, offer to see him at no charge in your office where a complete examination can be properly performed, adding, however, that comprehensive records do involve a fee commitment. I always told prospective patients that my x-ray vision disappeared when I stopped wearing the blue tights and red cape, and that it would be my pleasure to help them once I acquired the necessary data to be able to make a differential diagnosis and establish a definitive treatment plan.

For me, a doctor-patient relationship doesn’t begin until I have explained what I have found, what I want to do, how I want to do it, and what the patient’s responsibilities are (financial and temporal), and certainly not until the patient has agreed, preferably in writing, to accept what has been presented. It doesn’t mean that we can’t discuss options, it doesn’t mean that the patient can’t express a desire to do A vs B, and it doesn’t mean that, if asked, I won’t do something relating to the fee. It means that we have what the law refers to as a “meeting of the minds,” that we are both on the same page. It means that I have recognized certain expectations on the patient’s part that I am agreeing to accommodate. It means that the patient has accepted the requirements of conforming to my reasonable office policies and protocols regarding scheduling, finances, cooperation, and so on. It means that we have agreed to agree.

Merely making appointments does not confer the establishment of a doctor-patient relationship. The patient must actually show up. For me to start treatment without having obtained records to establish a differential diagnosis and a treatment plan that is designed to effectuate a certain result is akin to marrying someone without understanding the responsibilities of marriage. Is it any wonder that more than 50% of married couples wind up in separation or divorce?

The bottom line here is to open your eyes and look at what is transpiring between you and the patient. Pretreatment communications, consultations, recommendations, and other acts, when viewed from the patient’s perspective, have all, under specific circumstances and fact patterns, been deemed to initiate a doctor-patient relationship and hence a duty to conform to a certain standard of care. On the other hand, specific circumstances, fact patterns, and actions of either party have led to the finding of the lack of formation of a doctor-patient relationship. It is all determined by what happens in the beginning.

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Apr 8, 2017 | Posted by in Orthodontics | Comments Off on In the beginning
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