Referral liability and interdisciplinary craniofacial or dentofacial anomaly care

You have been in practice for about 10 years. Your practice is pretty much like those of your colleagues. You have a good mix of adult and adolescent patients, a good mix of various malocclusions including many interdisciplinary cases (preprosthetic, controlled periodontal concerns, impactions requiring surgical intervention, and you even have some patients with medical problems that impact orthodontic therapy). Professional life is good, stimulating, and fulfilling. One day, you get a call from a parent of a young child who has a cleft lip and palate asking whether you treat these types of problems. Although you have observed, helped, or even treated a few of these patients while you were in your training program, you haven’t had to treat one since you graduated. Are you obligated to treat this patient? Are you competent to treat this patient? Do you want to treat this patient?

You just graduated from your training program. Believe it or not, one of the first patients who walks into your office is an adult who needs 2-jaw orthognathic surgery because of a significant dentofacial deformity that had been treated solely by orthodontics when he was a teenager. The surgical plan is a 4-piece maxillary surgery with some grafts, and the mandible requires a large setback. Are you obligated to treat this patient? Are you competent to treat this patient? Do you want to treat this patient?

You just received a call from a good referring dentist who asks you to look at his nephew. He tells you it’s a complicated situation—some syndromic thing, and he can’t remember the name—and the kid has multiple supernumerary teeth, and some teeth are impacted; according to him, the teeth are all over the place. This patient will require a lot of time. You have a high-volume, third-party type of practice. Are you obligated to treat this patient? Are you competent to treat this patient? Do you want to treat this patient?

I think by now you get the drift of where I’m going. Those loosely constructed scenarios deal with whether to treat patients who have significant craniofacial anomalies or dentofacial deformity problems. The first question concerns the legal issue of accepting or rejecting patients. The second issue deals with competency concerns. The third deals with managing the risks that accompany interdisciplinary treatment by either accepting the patient or referring him or her.

Tackling the first issue, the legal question is must I accept everyone who seeks treatment from me? The answer is a qualified no. Courts have routinely stated that professional practitioners are not in the same category as common carriers or innkeepers and need not open their doors to all who seek their services. Since your office is a place of public accommodation, you cannot discriminate against or refuse to treat any person solely because he or she is a member of one of many legally protected classes of people. Some of the more common examples of illegal discrimination are based on refusing to treat patients because of their race, religion, sex, sexual orientation, national origin, or handicapping condition. However, you can discriminate regarding the provision of services based on such criteria as limiting your practice to a particular specialty, the patient’s inability to assume the financial obligations associated with treatment, the patient’s inability to abide by reasonably constructed office protocol, and so on, including the fact that you are uncomfortable rendering a certain type of treatment. This holds true even when the person is a member of a protected class, since the discrimination would also apply to anyone who was not a member of a protected class.

Does someone with a dentofacial deformity or a craniofacial anomaly have a handicapping condition so that he or she would fall under the umbrella and protection of the Americans with Disability Act? If your answer is no, then you can safely decline to treat, since your refusal, for whatever the reason, is not based on the fact that the person is a member of a protected class of people. As legal scholars have noted, “The existence of the relationship of physician and patient is a matter of fact depending on the questions whether the patient entrusted himself to the care of the physician and whether the physician accepted the case. The relationship is a consensual one, in which the patient knowingly seeks the assistance of a physician and the physician knowingly accepts him as a patient” (cit omit). However, for argument sake, let’s say that your answer is yes. Now, the only way to be able to decline to treat is if you don’t feel competent to treat this type of case to a successful or desired result. You are not required to perform any specific treatment nor must you render treatment if you are uncomfortable with your abilities to deal with the problem. If you decline for any other reason, the ice starts to get a whole lot thinner.

The purists among us would argue that you graduated from an accredited program, and there is no way that you did not receive sufficient training to be able to treat just about any orthodontic patient with a minimum degree of competency. Although that might be true, it could only be so in the academic sense, because all the book learning in the world doesn’t necessarily translate into clinical competency. The bottom line is that it’s still your choice, but the burden is on you, if someone calls you on it, to show that the choice not to treat was not based on illegal discrimination.

Regarding competency, although we have already discussed it a little, we must now look at the standard of care. Our duty is to possess and exercise the skill, knowledge, experience, and expertise (SKEE) that is possessed by the average practitioner in good standing in the community practicing under the same or similar circumstances. When you come right down to it, we need only the minimum amount of SKEE necessary to pass the examination that grants us a license to practice.

For the most part, orthodontics is routine. Most of our cases are rather straightforward. Sure, there are subtle differences and difficulties here and there, but our training has prepared us to handle most of what we will encounter in daily practice. However, every now and then, we come across a doozy of a case, a real head scratcher, a complicated, challenging, and stressor of a case. If you ever harbor any doubts about either your diagnostic abilities, academic depth, mechanotherapeutic propensities, or grit to fight the good fight, you are under no obligation to fight the windmill. It has to do with knowing your limitations and owning up to them. It might never happen to some of us, either because we are that good, that lucky, or filled with that amount of hubris. To others of us, it might only happen less than a handful of times over a 30 or 40 year career. For some of us, it happens a lot more often than that, and it is this recognition that brings us to the third question. If you want to assume the challenges and the associated risks of treating atypical or difficult cases, good for you, go for it. If not, referral is the appropriate option. Although it might seem odd, it is perfectly acceptable for orthodontists to refer patients to other orthodontists.

When discussing referral liability, risk-management educators often discuss the duty to refer and the underlying reasons for that duty. The generally accepted requisites comprising the duty to refer are (1) that one must do so if a reasonable practitioner would have done so under the same or similar circumstances; (2) that a reasonable chance for success was beyond the first doctor’s SKEE, or the case is not working out; (3) because patients expect a referral to a specialist (in this case, a subspecialist or someone with additional training) for subspecialty treatment; or (4) simply to spread the risk.

Looking at legal opinions from various jurisdictions, we find that King v Flamm , 442 S.W.2d 679 (Tex, 1969), held that “A general practitioner has duty to seek consultation with, or refer a patient to, a specialist when he knows, or in exercise of reasonable care should know, that the services of a specialist are indicated.” Carrying this 1 step farther, a specialist would have the same duty to refer to a subspecialist when indicated. There is no shame in admitting that the patient’s interests would be better served by being treated by someone with more experience if the case so dictates. As noted in Munoz v South Miami Hospital, Inc. , 764 So.2d 854, 856 (Fla. Dist. Ct. App, 2000), “Medical professionals must, under some circumstances, see to it that serious conditions which they know about are remedied either by themselves or by someone else competent to do so.” Burks v Meredith , 546 S.W.2d 366 (Tex. Civ. App, Waco, 1976), held by extension that “If there is expert testimony fairly supporting a conclusion that a reasonably careful and prudent . . . practitioner would have sought consultation under the same or similar circumstances, then the trier of fact . . . is entitled to find [for the plaintiff] if the practitioner was negligent in failing to do so. Tvedt v Haugen , 70 N.D. 338, 294 N.W. 183, 132 A.L.R. 379 (1940), noted that “A physician is in a position of trust and confidence as regards his patient, and it is his duty to act with the utmost good faith towards the patient. . . . [I]f he knows that . . . he does not have the facilities or training to give, but which is available from specialists, it is his duty to advise his patient of these facts, and his failure to do so and his continuance of the former treatment constitutes a breach of duty on the part of the physician.” In Villetto v Weilbaecher , 377 So.2d 132 (La. App. 4.Cir., 1979), it was noted that “For a physician to be found negligent for not referring the patient to a specialist (read this as subspecialist) , it must be shown that consultation with a (sub) specialist would have resulted in different or additional treatment and that such treatment would have been more beneficial than what was done” (italics added).

What is the potential liability for making a negligent referral? Essentially, you can make a negligent referral only if you knew or should have reasonably known that the doctor you referred the patient to, the referee, was not educationally qualified or not clinically competent, or was otherwise impaired in some manner. Sturm v Green , 398 P.2d 799, (Okla, 1965), noted that “The general rule is that a physician who is unable to care for a patient may send a substitute to care for the patient, and no liability attaches for the negligence of the substitute absent agency or negligence in selection of the substitute. [S]uch a duty is violated when a physician selects another doctor to handle a potentially dangerous case and knows, or should know, that the selectee lacks familiarity with the problems involved.” The judge in Greenwell v Aztar Indiana Gaming Corp , 268 F.3d 486 C.A.7 (Ind, 2001), was a little more blunt by stating that “Steering a patient to a doctor who commits malpractice is not itself malpractice or otherwise tortious unless the steerer believes or should realize that the doctor is substandard.”

Suppose, however, that you make a proper referral and that doctor commits malpractice, are you liable for the acts of another because you made the referral? The answer is a qualified no. Mandel v New York County Public Adm’r , 29 A.D.3d 869, 815 N.Y.S.2d 275 (2d Dep’t, 2006), stated that “Although the mere referral of a patient by one physician to another does not generally render the referring physician liable for the negligence of the treating physician, joint liability may be imposed where the referring physician was involved in decisions regarding diagnosis and treatment to such an extent as to make them his or her own negligent acts.” The bottom line is that, once you make the referral, don’t recommend that specific procedures be performed and don’t actively assist in the other doctor’s diagnosis, treatment plan, or clinical ministrations. In other words, stay out of the other guy’s business.

Finally, it is often prudent to educate patients as to why you are referring them to another orthodontist. In Baldor v Rogers , 81 So.2d 658 (Fla, 1955), the court stated that “the jury was justified in finding that the doctor breached his duty to the patient when he discharged the patient without arranging for any other medical attention, or different treatment, or even suggesting the advisability therefore . . . and when he failed to inform the patient that the treatment prescribed was failing and that the only prospect of recovery lay with other treatments.”

What if the patient refuses the referral and wants you to render the treatment even though you indicated that more experienced practitioners are available to deal with the specific problem? Assuming that you feel competent, although not as good as others might be, you will probably be okay as long as you don’t act negligently. West v Sanders Clinic for Women , P.A., 661 So.2d 714 (Miss, 1995), noted that “When a physician makes an unqualified recommendation of referral to another specialist, but the patient refuses to follow the referral, then the patient cannot complain later of the physician’s lack of skill, and may only complain if the physician negligently performs the treatment.”

Commentary

Okay, so what’s the real message here? Simply put: do what is best for the patient. Merely because you are an orthodontist does not mean that you possess adequate SKEE to handle every orthodontic problem that walks through your door. If you feel comfortable with what could lie ahead, good. Project that positive attitude to the patient and move forward. If not, make the referral. Think about it. That’s why they have craniofacial centers at major teaching institutions. That’s why the Commission on Dental Accreditation is now accrediting fellowship programs that provide additional training in this area. That’s why they have teams of oral and maxillofacial surgeons, plastic surgeons, pediatricians, speech pathologists, psychologists, nurses, restorative dentists, social workers, and so on, all working together to treat patients who unfortunately have craniofacial anomalies. Yes, we do have colleagues who are subspecialists in this area, and I for one am thankful that we do. They are more knowledgeable than I, have more experience than I, and have more patience than I. Patients with craniofacial anomalies, syndromes, dentofacial deformities, and so on, usually have been through an awful lot. Suppose you had a family member who was afflicted with a craniofacial anomaly or syndrome. Whom would you want to treat your loved one—you or someone with greater SKEE in this area? The answer, duh, is that you want someone who really knows what he or she is doing. Think M∗A∗S∗H and get the “pros from Dover.”

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Apr 8, 2017 | Posted by in Orthodontics | Comments Off on Referral liability and interdisciplinary craniofacial or dentofacial anomaly care
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