Working for another

A reader wrote the following.

I graduated from my orthodontic residency this past May and have been working part time in practice A for 6 months on the east coast. I have been offered a full-time opportunity near here, in practice B, but there is a strong possibility that I might move to the midwest in 1 1/2 to 2 years. Ideally, I would like to seriously consider the opportunity that practice B will afford me, so I can gain some additional clinical experience, as well as earn some desperately needed income. My problem is what happens if I do end up moving in 2 years with all of the patients who would be in the middle of treatment? What is my legal responsibility? Practice B’s employer is a general dentist who used to do a lot of orthodontics until 5 years ago, when he started hiring orthodontists like me. If I were to give him 2 or 3 months advance notice that I was leaving so he could either find another orthodontist or finish the patients himself, is that a sufficient way to exit the situation? This might not even be an issue if I never move, but, since the possibility exists, I want to be fully informed and prepared. I would appreciate any advice you can offer. Thanks, R.V.

This is a typical scenario and one that needs to be discussed, since it happens quite often. The younger, newer doctor—we’ll call him Junior—is offered an associateship with an established practitioner—we’ll call him Senior. If Senior is an orthodontist, there is usually not much of a problem. Maybe the opportunity will lead to partnership or a buyout; then again, maybe not. However, what if Senior is a general practitioner or a pediatric dentist? Many of our new grads wind up in this position. What is Junior’s responsibility if he leaves as far as potential claims regarding patient abandonment? Can he be forced to stay and finish the patients? How much notice should he give?

The first thing to look at to answer these questions would be the written employment agreement, assuming one exists. Initially, we would want to know about the relationship between the parties. Is Junior an employee or an independent contractor (IC)? Many Seniors are under the impression that Junior is an IC merely because they have declared it such in the contract. Although that might be the desire of the parties, it usually is not the case. Whether one is an employee or an IC usually hinges on who has the ability to control, whether or not control is exercised. Control can be measured by such things as who sets the days and hours that Junior will work. Who decides on the equipment and supplies to be used and who pays for them? Who develops the treatment plan, decides on the mechanotherapy to be used, and in some cases checks that the services were rendered correctly? Who sets the fees, the payment schedule, and the number of patients seen per day? All of these questions and their responses are then placed on the great triple balance-beam scale of life, and we wait to see which side the needle points to. Usually, after all the smoke has cleared, we find that Junior is an employee because Senior had the ability to control whether that ability was exercised and, if it was, to what degree.

The next issue is who owns the patients. To be frank about it (all you Seniors reading this, please don’t take this the wrong way), nobody owns the patients. Senior, however, does own the patient records. These records are assets of the practice, since they contain contracts with Senior for the delivery of orthodontic care. In return for his ministrations, there is an obligation to fulfill whatever financial arrangements were agreed upon between Senior and the patient or parent. Regardless of whether Senior is an orthodontist or a general practitioner, if Junior leaves, can he take the patients he has treated with him? If Junior is an employee, I doubt it, unless the employment agreement allows it or the parties have set up a practice-within-a-practice scenario. This type of relationship, although rare when Senior is an orthodontist, is more common when Senior is a general practitioner or a pediatric dentist. If this is done properly, Junior is more likely to be an IC working in Senior’s physical plant, paying Senior a percentage or fixed amount to cover a multitude of overhead expenses. Therefore, in the practice-within-a-practice scenario, more of the questions we asked earlier regarding who determines the fee, what the treatment plan is, which appliances are used, and so on are determinants controlled by Junior. This allow to Junior to take the orthodontic patients with him if he decides to leave later.

At this point, one must address the issue of patient abandonment. Although there are 3 prongs on the test to determine abandonment, for our purposes we will use the one that holds that it is abandonment to withdraw professional services from a patient who needs the services without providing for substituted care or giving the patient sufficient notice and time to allow him or her to seek substituted care. In the situation where Junior has a practice within a practice, if Junior decides to relocate, it is his responsibility to ensure that the continuity of patient care is not compromised. He can take the patients with him if the move is local; if the relocation is not local, Junior has other possibilities. First, he can return on a part-time basis to finish the treatment (this gets ugly toward the end when there are few patients, and it becomes cost and temporally prohibitive to continue to return even when appointment intervals are spaced out). Next, he can transition the practice to another local orthodontist, assuming there is someone willing to take over the patients (this can become difficult if there is much dead wood—eg, patients who have prepaid or finished paying on the contract, but work still remains to be done). Finally, Junior can try to find someone to take over his practice within a practice (often a tough sell).

Of course, if Junior is Senior’s employee, then Senior has the responsibility of replacing his orthodontic employee with someone who will then service his patients. In this scenario, we must ask what a reasonable amount of time might be for Senior to find a replacement for Junior. Suppose it is November when Junior tells Senior of his plans to leave. One way to look at it is to ask whether any orthodontists are hanging out on street corners waiting for a pickup truck to drive by and offer day labor to those who seek it. Not likely. No one would dispute that Senior will have a much better chance of finding per-diem help during the summer months simply because that’s when most young orthodontists have finished their training programs and are actively seeking employment. In today’s marketplace, it is not unusual to find that our newly minted Juniors are working at 2, 3, or more venues to fill up their schedules and make ends meet.

Now suppose that Senior has a hard time finding someone to take over Junior’s position. With no one to continue a patient’s treatment, who has abandoned the patient—Senior or Junior? The answer will probably hinge on who owns the patient’s records. Who rendered the patient’s treatment—Senior or Junior? Contractual legality aside, if patients get frustrated because their continuity of care has been compromised, and if they complain to their state dental boards or offices of professional disciplines, is it possible that Junior could be found to have abandoned those patients even if he didn’t own the patients’ records? The answer is yes, it is possible, and the reason is that we are dealing with administrative law as opposed to tort law. This is why, if you are Junior in this scenario, after you inform Senior of your intention to leave and give him a reasonable time frame to find a replacement for you, you should also send a letter to all of Senior’s patients, telling them that you are leaving as of x, y, z date and that Senior or another of his employees will be responsible for taking over their care after that time. This way makes it clear that you notified the patients of your intent to withdraw professional services and gave them sufficient time to decide whether to remain with Senior and whomever he gets to replace you in whatever time frame that happens to be, or to seek continuation of their treatment with another local orthodontist of their choosing. Once again, this is the type of issue that both parties should have addressed in the employment contract between Junior and Senior.

So, what can we tell our reader regarding his concerns? We know that he is working for a general practitioner, so we will advise him that as soon as he knows that he is going to leave, he must give Senior written notice of that fact. This notice should provide a time frame that was either specified in the original employment contract or is reasonable in terms of the demographics of the practice. If the contact is silent on this issue, then a reasonable time frame that gives Senior sufficient time to find a suitable replacement is required. You both should agree on the wording of a letter or an announcement to all patients you treated of your intention to leave and their options (it can be worded to strongly favor staying in Senior’s office). We will then wish him well as he begins his professional career and remind him that this scenario has a tendency to repeat itself, in a slightly different context, about 30 to 40 years down the line when he is ready to retire. Oh, joy.

Commentary

There are many aspects of risk management that come into play in the Junior-Senior relationship whether Junior is an employee, most likely, or an IC. Although patient abandonment is 1 issue, another is vicarious liability. This has been discussed in prior articles, but 1 thing that bears repeating is that, if Junior is an employee, any negligence committed by him can be imputed to Senior, the employer. On the other hand, if Junior is a true IC working for Senior regardless of whether he is a general practitioner, a pediatric dentist, or an orthodontist, it is often more difficult to find Senior vicariously liable for any of Junior’s ministrations that go awry.

Our reader wanted to be fully informed and prepared: smart thinking. Planning a smooth exit before starting is the sign of someone who appreciates the complexities of risk management issues that are blatantly obvious at the start of a relationship, those that arise during the relationship, and those that are dormant, waiting to rear their ugly heads on dissolution of the relationship. To paraphrase Sy Simms’ tag line in his commercials, “an educated consumer is our best customer.” For us, an educated Junior is often our best employee or IC.

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Apr 13, 2017 | Posted by in Orthodontics | Comments Off on Working for another
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