Problems of our own making: A view from both sides of the coin

I usually begin my column with the facts of a case and then create an analogy to orthodontics. After going through the court’s explanation of the law and its decision, I end the column with a commentary. It is here that I express my opinions and concerns, introduce appropriate risk management principles, and so on. This month’s column will be all commentary. The opinions and thoughts that I share with you in my commentaries in no way necessarily reflect the opinions of the AJO-DO or the American Association of Orthodontists; they are mine and mine alone.

For the first time, a patient found me on the Internet because of an article I wrote for another journal. He described a common problem, and I thought it might be interesting to share his comments as well as mine. He wrote the following.

I am writing to you to ask a question and for your advice about a patient abandonment issue that I personally experienced. Writing to you is my last resort as I have tried multiple avenues including the state dental board, the dental association and my insurance company’s grievance process to try to reach a resolution. I would appreciate if you could briefly comment or refer me to institutions that I can reach out to. My orthodontist dismissed me from his office 5 months into my treatment. He dismissed me on the phone, without any written or advance notification, or referral to another orthodontist. I never received any communication as to why I was being dismissed. My best guess is that the doctor didn’t like the fact that I was asking questions about the treatment plan. When his office manager called to dismiss me, I sort of flipped out on the phone. This situation has obviously put me in a very difficult situation as finding another doctor was very time-consuming and costly. There was a period of time that I didn’t have any emergency care until I started with my new doctor. All of the orthodontists I visited wanted to start my case as if I was a new patient, quoting me with a full treatment fee and time frame. The bottom line is that I was forced to start from scratch. I am still trying to recover the fees I already paid to my first doctor. He is refusing to pay them claiming he provided professional services to me; but from my point of view, his services were worthless as I now have to pay another full treatment fee to my new doctor; not to mention the time lost due to starting treatment from the beginning. The State Dental Board decided not to take any action against the orthodontist, claiming that he didn’t violate the Dental Practice Act. However, based on my research, not giving any advance written notice is against the Dental Practice Act, and I believe it is even a misdemeanor. According to the Dental Board, the doctor did send me a formal letter, but it was dated 2.5 months after the dismissal; hence the Board is saying he notified me, and he didn’t do anything wrong. However, I never received the letter as it wasn’t sent by certified mail; and second, the letter was sent 2.5 months after my dismissal so for all practical purposes it cannot constitute notice since notice, by definition, must take place before the event it is notifying someone about. Also, the lack of notification really put me in a difficult situation because of the absence of emergency care during the time period until I found my next orthodontist. I feel like the Dental Board was biased, overlooked the facts, and simply took the doctor’s side. I apologize for my long e-mail but at this point, even though I am still trying to recover my money, I think this is also a matter of principle. I believe doctors shouldn’t be allowed to get away with dumping a patient over the phone. I would appreciate any advice or comment you can give me.

Commentary

The doctor-patient relationship is bilateral and consensually based. Once in existence, this relationship can be dissolved in 5 ways: (1) both parties agree to end it (a common example is when the patient is relocating); (2) the patient’s condition is cured, and no further treatment is required; (3) the doctor or the patient dies; (4) the patient decides to unilaterally terminate the relationship; or (5), the doctor decides to unilaterally terminate the relationship. Reasons 1 through 3 are self-explanatory, and as to reason 4, the patient may terminate the relationship at any time, for any reason, or for no reason.

The doctor can unilaterally terminate the relationship if the patient breaches at least 1 of the 5 duties owed to the practitioner under the contract that comprises the doctor-patient relationship: (1) the patient is not following the doctor’s instructions regarding treatment and thus is jeopardizing his own treatment; (2) the patient is not keeping his appointments, thus causing interruptions in the continuity of care, not to mention the interference with the business aspect of the doctor’s practice; (3) the patient is not being truthful or forthcoming regarding necessary administrative inquiries (eg, his medical history, information about those financially responsible for his care, his degree of cooperation, signs and symptoms of problems, and so on); (4) the patient is not conforming to accepted modes of behavior (he is belligerent or abusive to the doctor or his staff, or is creating a hostile or unhealthy environment in the office); and (5), the patient is not paying for services rendered.

The letter-writer indicated that the only reason he could think of justifying his dismissal was that he questioned the treatment plan; he also admitted that he “sort of flipped out” on the phone, but this happened during the dismissal phone call. From the doctor’s perspective, many of us have encountered patients who come prepared with a pad of paper and a pen, and then proceed to write down every word we utter whether at initial screening, during the consultation visit, or even conversations at chair-side during treatment. When this happens, yellow caution flags should go up all over the place. Patients who conduct themselves in this manner often focus on minutiae, don’t really understand the greater picture, misinterpret the “dentalese” language, and play outside commentary against what we are telling them. To all of you patients out there, if you want to drive us nuts, this is 1 way to do it. When we encounter patients like this, once we have accepted them into our practice (we almost always do because we think we need the money), we wish we had been smart enough to see what was coming. Retrospectively, we realize that we should have told them to go to someone else—perhaps that colleague down the block whom we dislike so much. I don’t know the nature, depth, or language used regarding this patient’s “questioning of the treatment plan,” but it could have easily been interpreted by the doctor that the patient didn’t trust him and was challenging not only his knowledge but also his good intentions. That, in and of itself, makes a poor basis on which to build a doctor-patient relationship.

On the other hand, patients have an absolute right to question what we are saying. Informed consent is not valid if the patients don’t understand the material facts or the information we provide that allows them to make informed decisions about their treatment. Like anything else in life, it’s not what you say, but how you say it. Doctors must understand that, from the patient’s perspective, they will be spending a lot of money and a lot of time, not to mention enduring physical, social, and societal influences, as a result of deciding to accept what is essentially an elective health care ministration. They have valid concerns that we need to accept and address. Some patients have higher tolerances for the “inevitable negative consequences,” minor or major, that accompany orthodontic treatment, such as periodontal compromise, root resorption, decalcifications, and so on. Make no mistake, when these happen to a patient, it’s real and very meaningful to that patient. For me, I want to get all of this stuff out in the open, up front. Although I have been known to do a pretty good song and dance, I dislike having to step around, or worse, step in, some of the “stuff” that inevitably happens in the clinical practice of orthodontics.

So, where does that leave us? Dealing only with the issue of whether the doctor had a legal basis and a legal right to withdraw from rendering professional services, the decision must be in favor of the doctor. We now have to look at how this was done. Did the patient receive proper notice?

If a doctor chooses to terminate the doctor-patient relationship, he must give the patient proper notice. The reason for this is simple. Optimal oral health care of any type depends in large part upon continuity of treatment. Orthodontic therapy, for the most part, is almost always “active.” We are engaging teeth that are positioned all over the place. When a wire that has been distorted to engage ectopically positioned teeth starts to express its inclination to return to its initial shape and position, not only are we moving the teeth we want to move, but we are also moving teeth we don’t want to move because of the reciprocal nature of these forces. This is why we must see the patient at given and appropriate time intervals. It is not only to continue with our original treatment plan and the effectuating mechanics used, but, just as importantly, it is to reevaluate what has transpired so that we can intercept as well as possible any untoward movement as a result of our ministrations.

With metallurgical advances, we now have wires that remain active for much longer times. How many of us have experienced the “joys” of watching retracted canines tip and rotate significant amounts if they remain unchecked? Many of us have experienced the “thrill” of seeing rabbited-in anterior segments and mesially inclined posterior segments as we go about closing extraction spaces. We watch with avid anticipation the progression of movement as we pull our impacted canines down, only to realize the phenomena of gingival hypertrophy and resorption of the lateral incisor root—both common side effects. The point is that if we are not on top of things, those things can sometimes get out of hand.

This is why as part of the protocol inherent in dismissing patients from our practices, we must give them notice. Notice that we are withdrawing. Notice that we are advising them to seek continued treatment with another doctor. Notice that it is important to do so at their earliest convenience. Notice that we will help them to obtain a subsequent treating doctor if they need assistance in this area. Notice that we will not be responsible for anything that happens if they don’t obtain substituted care. Notice that we will be available for emergencies during a reasonable period of time while they seek substituted care. Notice that, if they are not going to seek the services of another practitioner, they must come in to have their active appliances removed. Notice.

We cannot dismiss patients who are in extremis. This is defined as patients who are in severe pain; patients who are experiencing significant swelling or bleeding; or patients whose treatment is not at a point where what’s happening is relatively passive, thus allowing them to be safely left unsupervised for a reasonable time during which they can seek substituted care.

How do we know whether a patient has received notice? One way is to send a dismissal letter via certified or registered mail. To accept the letter, the patient must sign for it. Suppose, however, that the patient knows what is in the letter and does not accept it. There is a legal presumption that we can use. The law presumes that if something was mailed, it was received. It is a rebuttable presumption. The patient can always present a newspaper article detailing how the mail truck overturned on the highway, but short of that, as long as there was proof of mailing, it is presumed that notice was received. This can be accomplished by a certificate of mailing, obtainable at any post office. It merely confirms that on a given date, Dr Smith mailed a letter to Mary Jones. This certificate is kept in the patient’s file along with a copy of the dismissal letter. Those of you who are paper free should scan the certificate of mailing with a note relating it to the digitally generated dismissal letter.

Must the notice be a written letter? Of course not. You can write in the chart that on this date you spoke with the patient and told her that for these reasons you are withdrawing from rendering further professional services and that you advise her to take these actions. In other words, you write down in the patient’s file all the stuff that you would have written in the dismissal letter. Trust me, it’s easier to generate the letter.

Our patient said that he was dismissed by telephone. Although not the ideal way to do it, it is acceptable, if everything that would have been written in the dismissal letter was said during the conversation. Our patient said that he received written notice 2.5 months later. I believe him; I think the doctor was engaging in a little “CYA.” The patient said that he had no access to emergency care during the time it took him to find substituted care. I believe that, too.

Dealing only with the issue of whether the patient received timely and appropriate notice of the doctor’s intent to withdraw from rendering future professional services, the decision must be in favor of the patient. The score is now 1 up.

The next issue that the patient wrote about concerns the actions of the state dental board. I have been an independent consultant for several state boards of dentistry, have been a member of 1 state dental board, have sat on a professional liability claims committee for over 10 years for our local dental society, have served as the executive director for a component dental society, and have monitored peer-review activities in various capacities throughout my career, so I have some basis for what I am about to say. The peer-review process at the local level is indeed biased; however, contrary to what our patient said, I believe there is a slight bias in the patient’s favor.

I have often witnessed a mind-set whereby the board or the committee in question honestly believes that some of their duties are to protect the rights of the public and to keep the doctor out of the litigation process. In doing so, these bodies will often bend over backwards to find even the slightest fault with the practitioner’s conduct, diagnosis, treatment, and so on to arrive at a resolution that addresses the 2 previously stated objectives. It is my understanding that, in most states, the doctor must participate in the peer-review process as an obligation associated with membership. I know many doctors who have been deprived of their day in court because of having to participate in peer-review activities, thus being judged by a panel of their professional peers rather than by a panel of their societal peers. Fortunately or unfortunately, the system is what it is. In addition, I have seen many peer-review decisions come down in a patient’s favor when I know that, if the matter had gone through civil litigation, the doctor would have prevailed. The reason for this observation is that, although they are well intentioned, these decision makers have little legal knowledge. In short, I don’t believe that the dental board was biased in the doctor’s favor as claimed by our patient. The current score: doctor 2, patient 1.

The last problem—the patient’s consternation at having to start over from square 1—is not so much a legal problem as an ethical and moral one. Over the last 35 years, I have been actively involved in orthodontic risk management and clinical bioethics relating to the practice of orthodontics. During my career, I have encountered innumerable patients who have repeated virtually the same story as told by our patient; nobody wants to accept transfer patients. I don’t get it; I’ve never gotten it. A new patient is a new patient. Maybe it’s a full case in some stage of midtreatment. Maybe it’s a phase 1 case. Maybe it’s an interceptive passive space-maintenance case. Even from the most jaded, greedy perspective, it’s a new patient who is bringing in new money. Given this, why wouldn’t you accept transfer patients?

Why do orthodontists think that they have the right to be so different from other health care deliverers? If you moved, you’d have to find a whole set of new doctors. Suppose all of them decided not to accept transfer patients. You’d be up the creek without a paddle. Now, it would be you ranting and raving about how screwed and left in the lurch you are; yet, we feel nothing about being elitist when it comes to patients in midtreatment who need to find a new orthodontist.

Let’s get this next item out of the way. Yes, people do leave 1 orthodontist and seek out another because of financial issues. Let me ask you a question. How many of you (or the members of your family) have gone to a health care practitioner who, you felt, did nothing, treated you poorly, overcharged you ridiculously, provided poor service, or whatever? For what you think is a good reason, you decide not to pay the guy. You honestly believe that you are in the right. You now need to go to another doctor. He wants to contact your previous doctor. Okay, truth time, how do you feel about that? Not very good, I’ll bet. You don’t want the first doctor’s office badmouthing you to your new doctor because maybe the new doc will tell you to find someone else. You don’t want him asking about your old outstanding balance because it will paint you in a poor light.

Hey, if it’s good for the goose, it’s good for the gander.

Part of the problem seems to stem from our educational system. Most postdoctoral orthodontic training programs I am familiar with either don’t accept transfer patients or do so begrudgingly, if they do. Once again, I don’t get it. One of the hardest and most difficult scenarios to deal with in clinical practice is handling transfer patients. Why? Some reasons are that, first, we don’t all agree on etiology or differential diagnostic criteria. Second, we often base treatment plans on subjective criteria such as what is esthetic and what isn’t. Third, we might not all plan treatment for a patient the same way. Fourth, we often don’t use the same hardware. Fifth, we often use different treatment mechanics. Finally, our retention philosophies often differ. And those are just the clinically related reasons! From an administrative perspective, because of our differing upbringings and value systems, our clinical and professional personae and personalities differ. Our administrative and financial policies also differ. Finally, our allowable delegable duties and our appointment time intervals differ. There is little standardization in clinical orthodontics, and the reality is that dealing with transfer patients is difficult. The kicker is that very often we don’t train our future colleagues how to deal with this difficult process, either. Something is really wrong with this picture.

From an ethical perspective, a primary principle of contemporary bioethics is nonmalfeasance; you know: above all, do no harm. How is it doing no harm to banish patients to orthodontic purgatory? How can we ethically defend starting every patient anew temporally and fiscally? Why aren’t our lecture circuit gurus providing insight into how to deal with transfer patients from both the clinical and the administrative perspectives? Better yet, why aren’t we teaching our residents how to do this before they go out into practice? Having been a program director at 3 programs accredited by the American Dental Association and having practiced for over 2 decades, I believe that teaching our residents how to deal with these intricacies is one of the best learning experiences we can impart to them.

The bottom line, at least for me, is that we as a profession harbor a dirty little secret—we don’t like to accept transfers. How important this issue is depends on which side of the coin you’re looking at. I know that many of you don’t agree with what I’ve said, but, as my father used to tell me, that’s what makes for horse races. If we were really keeping score, for me it’s a close call, but I lean toward the patient. The final score: patient 2, doctor 2.

To the patient (and I sent him a copy of this) I don’t have any words of wisdom. All doctors are not perfect; we are human beings having to deal with difficult clinical problems, sometimes difficult administrative situations, and sometimes difficult people as far as interpersonal relationships are concerned. I don’t know who the patient was, and I don’t know whether his questioning and “flipping out” were the cause of this situation, but the doctor apparently had every right to do what he did. I wish it weren’t so, but being dismissed as a patient from a doctor’s practice is allowable because of the consensual relationship between the parties. As for not receiving notice, the doctor should have done a better job; he should be admonished in some form for what he did. As to the dental board, they have a tough job, and most of the time they do it well, driven by good intentions, but every now and then they get something wrong. This would not happen to the extent that it does if some members of the board had formal legal or ethical training. I don’t want to receive a lot of letters from state boards; some of you have great people representing you; some don’t. In short, Mr Patient, I can only say that I am sorry you had to go through what you went through.

To the doctors out there who read my stuff: over the last 15 years, month after month, I have tried to teach the law as it applies to clinical orthodontic practice as well as the ethics concerning how to deal with various clinical scenarios. I try to couple this with a cup of common sense, a half teaspoon of various patient management techniques, 2 tablespoons of enhanced communication skills, and a plea for all of us not to outgrow our professional and personal britches. Sometimes, I have rubbed some of you the wrong way, and I know that some have disagreed with me strongly more than once. That’s okay. As I told our patient, I, you, and we are not perfect. I have tried to share some of my insights that many of you don’t have merely by virtue of the different roads we have traveled. My only plea is to put yourself in the patient’s position before you undertake certain actions and see how that position makes you feel. I have always considered my risk management educational endeavors as a professional obligation that I believe I have fulfilled.

Because of the digital age we live in, to whatever segment of the public gets hold of this, I need you all to know that orthodontics is one of the most profoundly rewarding careers anyone can undertake. We do what very few others can; the benefits we deliver, quite honestly, are pretty spectacular, and the value of the services we provide often can’t be accurately measured. Our profession is proud to serve our populace; yes, every now and then, some of our professional and personal shortcomings rear their ugly heads. But, all in all, we provide the highest level of this service in the world. Forgive us for not being perfect.

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Apr 8, 2017 | Posted by in Orthodontics | Comments Off on Problems of our own making: A view from both sides of the coin
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