The patient is a 14-year-old girl who sought treatment for a run-of-the-mill Class I moderately crowded malocclusion that could have been treated any number of ways. Her orthodontist straps up the case 7-7 in all quadrants. The only difficulty was the mandibular left second molar that had an overhanging operculum on its distal aspect. Getting a band on was tough, involving a little soft-tissue trauma, but the tooth was banded. Within a few days, the initial discomfort that most patients feel had worn off, except for that associated with the mandibular left second molar.

After a few more days, the patient calls her doctor’s office, and an expanded-duty auxiliary takes the call and says that because of her original periodontal status, the discomfort in the area in question is not unusual to last about a week or so. The patient now goes on vacation with her family. While away, 2 days later, she develops a slight swelling in the area and starts running a low-grade fever. She gargles with warm salt water, rinses the area thoroughly, and tries to keep the area as clean as possible with a toothbrush. A day later, the swelling is a little worse, it feels a little hard under her tongue, and her fever is just under 101°F. She searches the Internet for a local orthodontist, finds your Web site, and calls your office for advice. Your office manager says that you are also on vacation, but it is not uncommon for discomfort associated with getting braces on to last up to a week or so, and if the swelling still persists, she should see her orthodontist when she returns home (this is scheduled to be 3 more days).

Well, guess what? One day later, the patient develops a full-blown case of Ludwig’s angina, must be admitted to the hospital, requires intravenous antibiotics, an extraoral incision to insert a Penrose drain, the whole 9 yards. She is lucky, however, and is left with only a 2-in facial scar. Let’s say that she files suit against you. The question is, will she win? She had a serious injury that was caused by incorrect information given to her over the phone by one of your employees. This is a no brainer, right? No question that you’re going to lose. Not so fast.

These are essentially the facts in Estate of Kundert v Illinois Valley Community Hospital , 2012 IL App (3d) 110007. In that case, the patient was a 6-week-old newborn with a high temperature who was fussy, couldn’t sleep, and wouldn’t eat. The mother called the emergency room and spoke to a nurse, who said that the hospital didn’t have the equipment or medical personnel to treat infants and with the symptoms described, an emergency room visit was not warranted; she should give the child Tylenol and tepid baths and, if the child was not better, call her doctor in the morning. The next morning, the child was no better, maybe worse. The physician immediately called an ambulance and then called the emergency room and said that the child was septic. Upon admission, the patient was given intravenous antibiotics, fluids, and oxygen, and then transferred to a regional medical center, where he died a few days later from bacterial meningitis.

The subsequent malpractice suit claimed that the wrong information supplied over the phone led to a 15-hour loss of valuable time during which lifesaving treatment could have been administered, and that the delay in receiving appropriate medical treatment was the proximate cause of the baby’s death. The hospital answered that there was no legally recognized relationship between the hospital and the patient because a phone call does not constitute the formation of a doctor (hospital)-patient relationship; therefore, there was no duty to conform to any standard of care, and the hospital filed a motion for the suit to be dismissed. The trial court found for the hospital and dismissed the suit. Obviously, the plaintiff appealed.

The appellate court in reviewing the law stated the following.

A physician’s duty is limited to those situations in which a direct physician-patient relationship exists or there is a special relationship. . . . In this case, there was no special relationship and there was no direct physician-patient relationship, and hence no duty owed to plaintiff. . . . The relationship of physician and patient is one of trust and confidence. It is a consensual relationship in which the patient knowingly seeks the physician’s assistance and the physician knowingly accepts the person as a patient. . . . A physician’s duty arises only when a clear and direct physician-patient relationship has been established. (cits. omit.)

The plaintiff argued that (1) there was indeed a relationship between the child and the hospital because (2) the mother sought medical advice from the hospital, (3) a hospital employee gave medical advice to the mother that was tantamount to accepting the child as a patient, and (4) the mother relied on the advice given to her, and the child was subsequently injured as a result of that advice. The court noted that the plaintiff’s argument was essentially that a doctor-patient relationship is established any time a doctor dispenses advice. The problem with that argument is that, merely because a doctor renders advice, it does not mean that he has accepted the recipient of the advice as a patient. The doctor must knowingly accept that person as a patient. The patient had received an informal opinion by a knowledgeable health care practitioner. The mother was first told that the facility did not have the equipment or medical personnel to provide medical services to infants, and that the opinion the mother received was based on extremely common symptomology: a mild temperature, fussiness, and refusal to eat or sleep. The court noted that if it ruled otherwise, the “consequence of finding that such an inquiry and informal opinion sufficiently creates such a relationship ‘would have a chilling effect upon the practice of medicine. It would stifle communication, education and professional association, all to the detriment of the patient.’”

The plaintiff’s last argument was whether a duty to conform to a standard of care arises should be based on whether a patient seeks and receives advice via a telephone call to the health care provider in question. The court disagreed again by stating emphatically that the true test is whether the patient knowingly seeks a particular provider’s services, and that provider knowingly accepts that person as a patient; only upon that finding would the rendering of advice over the phone lead to a duty to conform to a certain standard of care.

The court then cited the facts of another case that was virtually identical to my original hypothetical; the patient was a 22-year-old woman who was about 2 months pregnant and complaining of stomach pains. The patient’s mother called the family’s physician (who had not seen the patient in 4 years) about 9:00 pm and described what was happening. The doctor told the mother that abdominal pain is not abnormal during pregnancy, but, if it got worse, the pregnant woman should go to the emergency room and see her obstetrician-gynecologist the next day. Around midnight, the mother took the patient to the emergency room, where she went into cardiac arrest and died. The claim in that lawsuit was that the patient would have lived had she been given appropriate treatment at 9:00 pm . The same doctor-patient relationship argument was at the heart of the matter; in that case, the court reiterated the law as stated in the present case but added that a “doctor must take some affirmative action with regard to treatment of a patient in order for the relationship to be established.” In that case, however, the jury determined that a doctor-patient relationship existed because the doctor “did not decline to express his medical opinion about her condition. Thus, he cannot be said to have declined to treat her.” (cit. omit.)

The difference between the 2 cases is that in the first situation, the judge rather than the jury ruled because the defendant had made a motion to dismiss the case based on the law. In the second case, no such motion was brought, so the case went to trial, and it was left to the jury to determine whether a doctor-patient relationship existed. The other differential nuance distinguishing the 2 cases was that in the first case, the emergency room nurse specifically told the child’s mother that the hospital did not have the equipment or personnel to treat an infant, a statement that could only be construed by the court as a declination to knowingly accept the child as a patient. So, it looks as if our doctor has a good chance of being found not liable.


I decided to discuss this case because there are many tangential legal considerations that bear directly on clinical orthodontic practice. By now, you all should be sensitive to activities that could lead reasonable minds to find the existence or nonexistence of a doctor-patient relationship. Advice given directly to a parent on the soccer field, at a block party, or at any other informal gathering about a child’s orthodontic status, diagnosis, or treatment, after you have taken a quick look-see, and having that parent rely on your professional opinion to the child’s detriment could, in the right situation, be construed that a doctor-patient relationship was indeed formed.

Practitioners today must also be cognizant of the doctrine of respondeat superior, which is Latin for “let the master answer.” In other words, the master is responsible for the acts of the servant. This legally recognized and universally held tenet means that a doctor is liable for the acts of his employees under the theory of vicarious liability when such acts are carried out at his direction, for his benefit, and within the scope of the employee’s duties. Our employees often perform acts that could create significant exposure and potential liability for the orthodontic practitioner such as HIPAA breaches, OSHA issues, insurance fraud (even when claims are filled out negligently rather than intentionally, breaching patients’ confidentiality, slander and liable regarding other practitioners and vendors, negligence, wrongful termination, employment issues, breach of contract issues, and the list goes on). I guess what I’m trying to say is that orthodontic practice today is not just about jockeying teeth from one position to another. It’s about running a business and having to be mindful and cognizant of all the responsibilities that small business owners have.

Practitioners today really need to have systems in place to hire the right people, train them appropriately, supervise their activities as required by statute and case law, remediate any faults, discipline when necessary, and terminate those who might harm not only the public we serve, but also the practice that we have built up. As I look back on my career and how I did what I did, as I observe what others are currently doing, and as I receive calls for advice from countless colleagues regarding their employees and employment issues, it occurs to me that part of a really good orthodontic postdoctoral training program must include a lot of this stuff. I have my doubts about whether organized orthodontic education is universally meeting this obligation. Sure, one can associate with a really good mentor who has been around the block more than a few times and learn from that person, but not everyone has that opportunity.

When patients sue us, they do so because they perceive that a wrong was committed on them. The bottom line is that unless there were true interpersonal differences of such a magnitude that the suit becomes a mechanism to achieve retribution, they are really complaining that in some way our business practices, our professional demeanor and response, a breakup in communications regarding our ministrations, or the acts of others we employ and rely on injured them or let them down. Their expectations were grossly unfulfilled. They know we didn’t do whatever it was on purpose. They know that whatever transpired was an unintended or a negligent consequence, but we blew it as doctors. We somehow incurred a breakdown in our health care delivery system, either in our diagnosis or treatment, our clinical staff’s activities, our administrative activities, or something in what we did failed them. It was our business to be a better business, and we blew it.

Whenever one of us is sued, it should be looked at as a wake-up call to the rest of us. Hey, look at what happened to me; if you don’t learn from my mistake, it can happen to you, too. As Michael Corleone told Sonny and Tom Hagen in The Godfather , upon proposing to kill Sollozzo and Captain McCluskey, “It’s not personal; it’s strictly business.”

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