So, a patient comes to you needing whatever. He expects his insurance to cover the treatment, and so does your office. Therefore, you go ahead and treat him. Not too far down the road, everybody realizes that the insurance company will not cover the services rendered. You refuse to give the patient any more appointments until he pays the fee due for services already rendered. He disappears and ultimately reappears after an extended period of time, having dutifully worn whatever you gave him. Bad things have happened because of the unmonitored and unsupervised appliance wear. A lawsuit ensues. The patient sues you on 2 fronts: malpractice and a violation of the state consumer protection statute because your actions were unfair or deceptive when you were conducting a trade or engaged in commerce. You claim that the patient never returned for follow-up treatment. These are the facts that make up lawsuits—and risk management articles.
In Hastie v Alpine Orthopedics & Sports Medicine , Case # DA 15-0029, 2015 MT 346 (Mont Sup Ct., Dec 22, 2015), the plaintiff was injured in an all-terrain vehicle accident. The injury required foot surgery, at which time bone screws were inserted into his foot. The postoperative visit showed that all was healing well, and the plaintiff was given an orthotic boot to wear, given some exercises, and told to return in 6 weeks. The plaintiff expected that the homeowner’s insurance belonging to the person from whom he borrowed the all-terrain vehicle would cover the surgery. When it did not, he was faced with a $9000 bill. The plaintiff claimed that he tried to make follow-up appointments with the orthopedist but was refused because his account was past due and outstanding.
The doctor said that his office policy is not to turn away financially delinquent patients and that he has never done so because it would be substandard care. The doctor’s office’s phone logs note that the staff spoke with the plaintiff on only 2 occasions, and the plaintiff inquired about the status of his account but did not make any follow-up appointments. The doctor stated, and an expert witness supported his contention, that it was not the defendant’s policy or within the standard of care for physicians to track down patients and insist on follow-up appointments. Rather, it is the patient’s responsibility to schedule recommended follow-up appointments.
Seventeen months later, the plaintiff sought the services of another orthopedist. He was still wearing the boot. Surgery was recommended and agreed to for removal of the screws. The patient, however, did not undergo surgery for another 10 months for financial reasons. At that point, the boot was removed, and 6 months later the surgery to remove the screws was actually performed.
The plaintiff sued, alleging malpractice and violations of the Montana Consumer Protections Act (CPA). He claimed that because he was not given follow-up appointments due to his outstanding bill, which was an unfair and a deceptive practice (the CPA violation), he was forced to wear the boot for an extended period of time resulting in degenerative back pain and difficulty walking (the malpractice claim). The district court found for the defendant, and this appeal ensued.
The supreme court first addressed the plaintiff’s CPA claim—that the defendant engaged in “unfair or deceptive acts or practices in the conduct of [his] trade or commerce” that related to his “entrepreneurial dealings” with patients. The basis for these claims was that the defendant did not give the plaintiff the necessary information on which to make an informed decision about his “purchase” of the surgery, and that the defendant’s office barred patients who had unpaid or overdue accounts from returning to the office. In affirming the district court’s finding, the supreme court noted that trade or commerce as defined in Section 30-14-102(8) of the CPA means “the advertising, offering for sale, sale, or distribution of any services, any property, tangible or intangible, real, personal, or mixed, or any other article, commodity, or thing of value, wherever located.” The court noted that the CPA has only applied in 1 case involving a health care professional and that it could only be applied to “those acts or practices in the conduct of the entrepreneurial, commercial, or business aspects of running a [medical practice]” because to hold otherwise could wind up rendering medical malpractice laws obsolete. As an example, the court noted that although a hospital’s billing or advertising practices could be considered entrepreneurial, commercial, or business related, its credentialing practices would not be. The court noted that the refusal to render care, regardless of the reason, falls under the umbrella of a claim for negligence. The same rationale was applied to the lack of information regarding “purchasing” the surgery, since this was merely a lack of informed consent claim cloaked in obfuscatory language. The rulings of the lower court in favor of the defendant were upheld.
Commentary
This scenario is not new. Most of the time when theories of legal redress other than negligence are used against us such as violations of a state’s consumer protection statutes or claims for breach of contract, it’s to get around a statute of limitations problem, a weak negligence case, problems with obtaining expert testimony, and so on. If these claims are to be successful, they must be based solely on the business aspects of our practices. As Michael Corleone told his brother Santino in The Godfather , “It’s not personal, Sonny; it’s strictly business.” Well, for our purposes, it’s not negligence; it’s strictly business.
This, of course, is the problem. Over the last few decades, we find ourselves morphing. Once we were strictly a profession. There were entrepreneurial aspects to practicing our profession to be sure, but back then, first and foremost, there was a strict code of ethics and no advertising other than a modest Yellow Pages ad. Some argued that the code was too restrictive, based on economic protectionism, and arrived at by a bunch of good ole boys in the back room, sans cigars. There was no advertising, hence no competition. Then along came the Bates case, and we’re not talking about Norman. Suddenly advertising was the new normal. Slowly but surely, it gained traction to become what it is today. More on this later.
Eventually, our code of ethics changed, and we were now at least paying lip service to the principles of normative ethics. At the same time, dental service organizations began to blossom; and with them, advertising and business practices became, if not mainstream, accepted by a significant minority of practitioners. Marketing, internal and external, advertising, and basic business principles started to infiltrate professional practices, and a new paradigm was evolving. Aside from print, there were now radio and TV ads. Professional promotions in all forms started to become a budgetary line item. Staff bonuses were often linked to virtually all aspects of productivity.
If there was money to be made via advertising and marketing, there was money to be made teaching us how to do it. Our conference and meeting gurus now had new grist for their mills. I’m not advocating, and I’m not denigrating; it was what it was. There was no stopping this train. At some point, it became quite obvious to those with a strong business sense and background that there was money to be made in the business of dentistry as opposed to the practice of dentistry. Some would say that they are the same; others would opine they are quite different. Regardless, corporate dentistry was knocking on the door, and we answered it.
Whether it was because some sought to become business entrepreneurs in their own right, some saw corporate dentistry as an exit strategy; and some merely sought employment as they eschewed the thought of starting out on their own due to risk adversity. Whatever the reason is not the point. The point is that dentistry morphed from a profession to a business. Not totally, mind you, but enough that it had to be recognized for the player it had become. Sure, it could still be just a profession, but now, to succeed, it had to become a hybrid. You had to find a way to compete in an ever-increasing competitive world. Marketing could be subtle, but it was marketing, advertising, and practice promotion nonetheless.
The point of this entire diatribe is that with marketing, with advertising, with various forms of practice promotion come the inevitable misstatements, innuendos, promises, and the like that lead one to say, “hey, this falls under the rubric of the entrepreneurial side of practice, not the professional side.” When that happens, and believe me it does every day of the week (Web pages are notorious for promising service and results that have no business being promised), practitioners will be held to those promises or inducements and will be bound to deliver on them. If they don’t, that’s where a state’s consumer protection statute comes into play.
Our practice management gurus are very good at teaching how and why business does what it does. This is all well and good and as it should be if we merely see ourselves as a business. The problem is that we are not only a business. We are a licensed profession that is held to a different standard. There is legal, and there is ethical. There is professional, and there is entrepreneurial. At times, they coexist—at times, they don’t. Ethics are situational, temporally dependent, and are based on a number of factors that allow for different people to reasonably differ on whether something is ethical; think of all the various shades of gray. Legal, well that’s a little more black and white.
The bottom line is that we can’t just blindly follow what anyone tells us, whether it is how to move teeth, how to conduct our business, or how to relate to our patients. Practitioners I meet at meetings often ask, “how did we get to where we are?” The answer is quite simple—we are where we are because we chose to be here. Not all of us, mind you, but enough of us. Remember what Pogo said in the Earth Day poster back in 1970: “We have met the enemy, and he is us.”
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