Orthodontic purgatory

To all my readers: Thanks for sending in topics that you want to see covered in this column. So far, they have fallen into 4 categories, and for brevity’s sake, I’ll combine and condense as many of them in each area as possible. The first ones, as expected, dealt with the issue of nonpayment. The composite question is: “Regarding nonpayment, is it better to (1) discontinue treatment outright or (2) provide the patient with ‘maintenance visits’ and not progress with the orthodontic care any further until the financial issues are resolved?” The follow-up question would be: “Is it abandonment if, after the braces are placed, the parent stops paying and refuses or is not allowed to bring the child in because of the unresolved financial issues?”

The duty we owe our patients stems from the doctor-patient relationship. As stated by one court, this consensual quasi-contract is based on 2 legally recognized expectations. On one hand, the patient visits the doctor with the expectation that he will be appropriately treated and cured. On the other hand, the doctor enters into this relationship hoping to ameliorate the patient’s malady and expecting to be paid for professional services rendered. Nothing more, nothing less.

Although we owe a patient about 20 or so obligations inherent in this relationship and flowing from this “contract,” the patient owes us only 5: one of them is to pay, either personally or through a third party, for the professional services rendered. When the patient breaches this obligation, we are perfectly within our rights, if we so choose, to terminate the doctor-patient relationship. At this point, I am making the distinction between terminating the doctor-patient relationship and discontinuing treatment, as was asked in the question. We are not obligated to terminate the relationship; we merely have the right to do so. No court has ever held that doctors are required to start treatment on a patient and then, partway through our ministrations when the patient decides, for whatever reason, to stop paying for services rendered, continue treating for free. We cannot refuse treatment when the patient is in extremis, which is defined as having pain, bleeding, swelling, or whatever, or when the patient is at a stage of treatment that places him or her in a precarious condition because of the clinical realities of the case: eg, retracting canines with nickel-titanium coil springs that are continually active and might result in significantly rotated or tipped canines if the patient is not followed closely. Essentially, we must first stabilize the patient, and then we can then terminate the relationship.

Although we have the absolute right, at virtually any time, to discontinue active treatment, this is different from terminating the doctor-patient relationship. Any time that we decide that it is in the patient’s best interest to discontinue active treatment, we can do so. Some common reasons for taking this action are the midtreatment development of significant decalcifications or caries, root resorption, periodontal compromise of the supporting hard-tissue or soft-tissue structures, temporomandibular joint dysfunction, and so on. Depending on the clinical situation, we might decide that it is in the patient’s best interest to remove the appliances and place him on observation to monitor the situation, or to insert retainers and continue to monitor the clinical situation. This decision is obviously based on the reason that we decided to discontinue or suspend treatment. A classic example is to provide a resting period upon the discovery of root resorption. We could be planning to reinitiate treatment at some point or maybe not. The bottom line is that during this period of active treatment discontinuation, the doctor-patient relationship is still in existence.

As an aside, once you make the decision to discontinue or suspend active therapy for whatever the reason, don’t allow the patient to talk you out of that decision, because if you do so and the case goes south, and the patient initiates a malpractice suit, you have just become a witness against yourself. You knew what was right, you recommended it to the patient, and then the patient convinced you not to do what you knew was right. Once you make the decision, stick to it. Sure, there might be some exceptions to this “rule,” but let’s adhere to the generalities for now.

In the previous paragraphs, all decisions regarding discontinuing or suspending a patient’s active treatment were based on clinical parameters and not administrative reasons. The long and short of it is that you cannot slow down or maintain the status quo, or not give a patient future appointments, for nonclinical reasons. I don’t care what our practice management gurus tell us, don’t do it. Although it might be great practice management advice, it is lousy risk management advice. There is no legal justification or defense for punishing a patient because of pecuniary shortcomings.

It is usually at this point that someone asks: “Well, what if I have already taken out 4 premolars and the spaces are not closed? I was taught that I had to continue with treatment.” Baloney. Imagine the following.

(Man in trench coat on a dark street corner standing in the shadows as patient walks by.)

Man (strong whisper) : Pssst, hey you. Come-‘ere. Hey, you need braces? Have I got a deal for you.

Patient: Yeah, what’s the deal?

Man: Hey, listen. You need braces, right? Okay, go see this guy Jerrold. Give him a small down payment to start treatment and then stop paying him. Guess what? He’s gotta finish the case!

A scenario as described above would result in a chilling effect on the delivery of health care if it were true. No court anywhere ever held that a doctor must go to the sign shop, buy a neon sign that reads “SUCKER,” and hang it over his door.

If the case was started nonextraction and treatment were to be discontinued, it’s hard to see how the patient will be in a worse off position than when he started treatment. Are there exceptions? Sure, but they are few and far between. On the other hand, let’s say that it was an extraction case. Let’s also take a giant leap and say that there was a good and valid reason for extracting those 4 pesky premolars. Usually it was done for high blocked-out canines, ectopically erupting teeth, crowded anterior teeth, or a pretty decent sized bimaxillary dentoalveolar protrusion. Assuming such is the case, will the patient be better off now that the premolars are out? You bet. Ever hear of serial extractions? You make the room, and the teeth drift toward a more normal relationship. I know it’s an oversimplification, but it makes the point. Most of the time, patients will not be injured by discontinuing active force application for a short time while they go to find another orthodontist to sponge off of.

Now hold on a minute, Jerrold, wouldn’t the smarter move be to just finish the case and then go after what the patient owes you in small claims court? By asking that question, what you are really asking is how much are you willing to pay for the price of aspirin to make the headache go away. Maybe it’s only a few hundred dollars, maybe it’s a thousand, or maybe even more. Hey, it’s your headache. That’s why they call it risk management. You are assessing the pluses and minuses of a situation, factoring in your risk tolerance, and coming up with an action plan. For some of us, it might be best to suck it up (finish the case and eat what the patient owes you, but don’t be surprised if others in your neck of the woods hear about it and try to follow suit). For others, the price of aspirin is too steep, so when nonpayment starts to occur, we send ’em packing. I was taught by my practice management gurus, back in the Jurassic Age, that if you don’t collect what patients owe you, it’s not their fault, it’s yours!

On the other hand, you have a financially delinquent patient. Suspending treatment is not an option because financial delinquency is a nonclinical, administrative situation. You have decided that the price of aspirin is too high (finishing the case and then going after the money); this leaves you with 2 choices. Finish the case gratis and don’t go after the money, or terminate the doctor-patient relationship because the patient breached one of the 5 obligations owed to you under the doctor-patient contract. A number of docs will choose door number 1. Why? Because going after the money is a common reason that patients file retaliatory malpractice suits; if you happen to be a victim of this type of migraine, it often requires very expensive aspirin to make it go away (we’re talking legal fees, time out of the office, stress, negative publicity, and so on). Other doctors will choose door number 2, terminating the doctor-patient relationship. You all know the protocol: written notice, time to seek alternative or substituted care, consequences of not doing so, records availability, yada, yada, yada. Once you decide to go this route, the only 2 questions are Do I take off the appliances and Do I provide retainers? Both answers depend on the clinical specifics of the case. What’s important here is to realize that once this is done, there is no more doctor-patient relationship and no further duty owed the patient. You are done, headache gone. Sure, there are some exceptions, and sure, sometimes, though not often, this also results in a malpractice suit, but as was noted before, the name of the game is risk management: how do you want to handle the various risks associated with day-to-day practice?

Let’s say that I have convinced you that, all in all, once a patient starts to get into financial arrears, you should elect to terminate the doctor-patient relationship. Remember our reader’s follow-up question? Won’t this result in our having abandoned the patient? Let’s look at the definitions of abandonment. The first is not giving the patient any more appointments or refusing to see him before the treatment is completed, without having a valid legal basis to do so. Since not paying for services rendered is one of the 5 legitimate reasons for withdrawing as the treating physician, no problem. The second is not being available for required or emergency care and not providing suitable coverage in your absence. If you disappear on vacation, or for continuing ed courses, sickness, or whatever, and you don’t have a beeper, phone contact, or recording on your answering device, or no doctor is covering for you, in short, you are abandoning the patient, and you should be spanked. However, my favorite is the third definition. It’s called constructive abandonment. You know, when the patient is told that he is not being given any more appointments or treatment is being slowed down or stopped until he makes suitable financial arrangements for the overdue account. Yeah, that one. The one we have been discussing for all this time. By holding up treatment for nonclinical reasons, you are holding the patient’s teeth hostage; you are essentially banning him to orthodontic purgatory, not to be released until you are able to demand, as Cuba Gooding Jr. did in Jerry Maguire , to “Show me the money.” Sorry, dudes, you just can’t do it.


There really isn’t much more to say that hasn’t already been discussed. This situation is so common that it should be a “must teach” in every training program. What today’s practitioners must not only understand, but also appreciate, is the fact that treatment has nothing to do with money—nothing. A patient’s clinical treatment is determined by the clinical findings and the facts of that case, coupled with the treating doctor’s SKEEE (skill, knowledge, education, experience, expertise) incorporated with the patient’s desires and expectations regarding orthodontic treatment. The money, the fee, the payment plan, the quid pro quo is nothing more than a method of compensation for professional services rendered, period. The financial agreement does not dictate the standard of care due to the patient any more than the price of a car dictates its quality, drivability, or reliability. Gee, sounds like a contract to me. The patient is buying professional services.

We have all signed contracts of one form or another. What happens when one party breaches the contract and decides not to pay for whatever goods or services are being bargained for? The person getting the short end of the stick has certain choices. We have discussed them, but in the health care arena, we can’t repossess the braces, we can’t jeopardize the patient’s oral health, we can’t hold the patient hostage, because we don’t have a right to practice orthodontics. We are granted a license by the state, and we must conform to certain administrative, legal, and ethical constraints. The good news is that within these constraints is the ability to cut our losses.

I think this dead horse has been beaten quite enough.

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Apr 6, 2017 | Posted by in Orthodontics | Comments Off on Orthodontic purgatory
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