LITIGATION AND LEGISLATION

Orthodontic purgatory
Laurance Jerrold
Jacksonville, Fla

o all my readers: Thanks for sending in topics that

you want to see covered in this column. So far,
they have fallen into 4 categories, and for brevity's
sake, I'll combine and condense as many of them in each
area as possible. The rst ones, as expected, dealt with
the issue of nonpayment. The composite question is:
Regarding nonpayment, is it better to (1) discontinue
treatment outright or (2) provide the patient with maintenance visits and not progress with the orthodontic
care any further until the nancial issues are resolved?
The follow-up question would be: Is it abandonment if,
after the braces are placed, the parent stops paying and
refuses or is not allowed to bring the child in because of
the unresolved nancial issues?
The duty we owe our patients stems from the doctorpatient relationship. As stated by one court, this consensual quasi-contract is based on 2 legally recognized
expectations. On one hand, the patient visits the doctor
with the expectation that he will be appropriately treated
and cured. On the other hand, the doctor enters into this
relationship hoping to ameliorate the patient's malady
and expecting to be paid for professional services
rendered. Nothing more, nothing less.
Although we owe a patient about 20 or so obligations
inherent in this relationship and owing from this contract, the patient owes us only 5: one of them is to pay,
either personally or through a third party, for the professional services rendered. When the patient breaches this
obligation, we are perfectly within our rights, if we so
choose, to terminate the doctor-patient relationship.
At this point, I am making the distinction between terminating the doctor-patient relationship and discontinuing treatment, as was asked in the question. We are
not obligated to terminate the relationship; we merely
have the right to do so. No court has ever held that doctors are required to start treatment on a patient and
then, partway through our ministrations when the patient decides, for whatever reason, to stop paying for services rendered, continue treating for free. We cannot
refuse treatment when the patient is in extremis, which
President, Orthodontic Consulting Group, LLC, Jacksonville, Fla.
Am J Orthod Dentofacial Orthop 2014;145:116-8
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Copyright 2014 by the American Association of Orthodontists.
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is dened as having pain, bleeding, swelling, or whatever, or when the patient is at a stage of treatment
that places him or her in a precarious condition because
of the clinical realities of the case: eg, retracting canines
with nickel-titanium coil springs that are continually
active and might result in signicantly rotated or tipped
canines if the patient is not followed closely. Essentially,
we must rst stabilize the patient, and then we can then
terminate the relationship.
Although we have the absolute right, at virtually any
time, to discontinue active treatment, this is different
from terminating the doctor-patient relationship. Any
time that we decide that it is in the patient's best interest
to discontinue active treatment, we can do so. Some
common reasons for taking this action are the midtreatment development of signicant decalcications or
caries, root resorption, periodontal compromise of the
supporting hard-tissue or soft-tissue structures, temporomandibular joint dysfunction, and so on. Depending
on the clinical situation, we might decide that it is in
the patient's best interest to remove the appliances
and place him on observation to monitor the situation,
or to insert retainers and continue to monitor the clinical
situation. This decision is obviously based on the reason
that we decided to discontinue or suspend treatment. A
classic example is to provide a resting period upon the
discovery of root resorption. We could be planning to reinitiate treatment at some point or maybe not. The bottom line is that during this period of active treatment
discontinuation, the doctor-patient relationship is still
in existence.
As an aside, once you make the decision to discontinue or suspend active therapy for whatever the reason,
don't allow the patient to talk you out of that decision,
because if you do so and the case goes south, and the patient initiates a malpractice suit, you have just become a
witness against yourself. You knew what was right, you
recommended it to the patient, and then the patient
convinced you not to do what you knew was right.
Once you make the decision, stick to it. Sure, there might
be some exceptions to this rule, but let's adhere to the
generalities for now.
In the previous paragraphs, all decisions regarding
discontinuing or suspending a patient's active treatment were based on clinical parameters and not

Litigation and legislation

administrative reasons. The long and short of it is that

you cannot slow down or maintain the status quo, or
not give a patient future appointments, for nonclinical
reasons. I don't care what our practice management gurus tell us, don't do it. Although it might be great practice management advice, it is lousy risk management
advice. There is no legal justication or defense for punishing a patient because of pecuniary shortcomings.
It is usually at this point that someone asks: Well,
what if I have already taken out 4 premolars and the
spaces are not closed? I was taught that I had to
continue with treatment. Baloney. Imagine the
following.
(Man in trench coat on a dark street corner standing
in the shadows as patient walks by.)
Man (strong whisper): Pssst, hey you. Come-'ere.
Hey, you need braces? Have I got a deal for you.
Patient: Yeah, what's the deal?
Man: Hey, listen. You need braces, right? Okay, go
see this guy Jerrold. Give him a small down payment
to start treatment and then stop paying him. Guess
what? He's gotta nish the case!
A scenario as described above would result in a chilling effect on the delivery of health care if it were true. No
court anywhere ever held that a doctor must go to the
sign shop, buy a neon sign that reads SUCKER, and
hang it over his door.
If the case was started nonextraction and treatment
were to be discontinued, it's hard to see how the patient
will be in a worse off position than when he started treatment. Are there exceptions? Sure, but they are few and far
between. On the other hand, let's say that it was an extraction case. Let's also take a giant leap and say that there was
a good and valid reason for extracting those 4 pesky premolars. Usually it was done for high blocked-out canines,
ectopically erupting teeth, crowded anterior teeth, or a
pretty decent sized bimaxillary dentoalveolar protrusion.
Assuming such is the case, will the patient be better off
now that the premolars are out? You bet. Ever hear of serial extractions? You make the room, and the teeth drift
toward a more normal relationship. I know it's an oversimplication, but it makes the point. Most of the time, patients will not be injured by discontinuing active force
application for a short time while they go to nd another
orthodontist to sponge off of.
Now hold on a minute, Jerrold, wouldn't the smarter
move be to just nish the case and then go after what the
patient owes you in small claims court? By asking that
question, what you are really asking is how much are
you willing to pay for the price of aspirin to make the
headache go away. Maybe it's only a few hundred dollars, maybe it's a thousand, or maybe even more. Hey,
it's your headache. That's why they call it risk

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management. You are assessing the pluses and minuses

of a situation, factoring in your risk tolerance, and coming up with an action plan. For some of us, it might be
best to suck it up (nish the case and eat what the patient owes you, but don't be surprised if others in your
neck of the woods hear about it and try to follow suit).
For others, the price of aspirin is too steep, so when
nonpayment starts to occur, we send 'em packing. I
was taught by my practice management gurus, back in
the Jurassic Age, that if you don't collect what patients
owe you, it's not their fault, it's yours!
On the other hand, you have a nancially delinquent
patient. Suspending treatment is not an option because
nancial delinquency is a nonclinical, administrative situation. You have decided that the price of aspirin is too
high (nishing the case and then going after the money);
this leaves you with 2 choices. Finish the case gratis and
don't go after the money, or terminate the doctorpatient relationship because the patient breached one
of the 5 obligations owed to you under the doctorpatient contract. A number of docs will choose door
number 1. Why? Because going after the money is a
common reason that patients le retaliatory malpractice
suits; if you happen to be a victim of this type of
migraine, it often requires very expensive aspirin to
make it go away (we're talking legal fees, time out of
the ofce, stress, negative publicity, and so on). Other
doctors will choose door number 2, terminating the
doctor-patient relationship. You all know the protocol:
written notice, time to seek alternative or substituted
care, consequences of not doing so, records availability,
yada, yada, yada. Once you decide to go this route, the
only 2 questions are Do I take off the appliances and
Do I provide retainers? Both answers depend on the clinical specics of the case. What's important here is to
realize that once this is done, there is no more doctorpatient relationship and no further duty owed the patient. You are done, headache gone. Sure, there are
some exceptions, and sure, sometimes, though not
often, this also results in a malpractice suit, but as was
noted before, the name of the game is risk management:
how do you want to handle the various risks associated
with day-to-day practice?
Let's say that I have convinced you that, all in all,
once a patient starts to get into nancial arrears, you
should elect to terminate the doctor-patient relationship. Remember our reader's follow-up question?
Won't this result in our having abandoned the patient?
Let's look at the denitions of abandonment. The rst
is not giving the patient any more appointments or
refusing to see him before the treatment is completed,
without having a valid legal basis to do so. Since not
paying for services rendered is one of the 5 legitimate

American Journal of Orthodontics and Dentofacial Orthopedics

January 2014  Vol 145  Issue 1

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reasons for withdrawing as the treating physician, no

problem. The second is not being available for required
or emergency care and not providing suitable coverage
in your absence. If you disappear on vacation, or for
continuing ed courses, sickness, or whatever, and you
don't have a beeper, phone contact, or recording on
your answering device, or no doctor is covering for
you, in short, you are abandoning the patient, and you
should be spanked. However, my favorite is the third
denition. It's called constructive abandonment. You
know, when the patient is told that he is not being given
any more appointments or treatment is being slowed
down or stopped until he makes suitable nancial arrangements for the overdue account. Yeah, that one.
The one we have been discussing for all this time. By
holding up treatment for nonclinical reasons, you are
holding the patient's teeth hostage; you are essentially
banning him to orthodontic purgatory, not to be
released until you are able to demand, as Cuba Gooding
Jr. did in Jerry Maguire, to Show me the money. Sorry,
dudes, you just can't do it.
COMMENTARY

There really isn't much more to say that hasn't

already been discussed. This situation is so common
that it should be a must teach in every training program. What today's practitioners must not only understand, but also appreciate, is the fact that treatment

January 2014  Vol 145  Issue 1

has nothing to do with moneynothing. A patient's

clinical treatment is determined by the clinical ndings
and the facts of that case, coupled with the treating
doctor's SKEEE (skill, knowledge, education, experience, expertise) incorporated with the patient's desires
and expectations regarding orthodontic treatment. The
money, the fee, the payment plan, the quid pro quo is
nothing more than a method of compensation for professional services rendered, period. The nancial agreement does not dictate the standard of care due to
the patient any more than the price of a car dictates
its quality, drivability, or reliability. Gee, sounds like a
contract to me. The patient is buying professional
services.
We have all signed contracts of one form or another.
What happens when one party breaches the contract and
decides not to pay for whatever goods or services are being bargained for? The person getting the short end of
the stick has certain choices. We have discussed them,
but in the health care arena, we can't repossess the
braces, we can't jeopardize the patient's oral health,
we can't hold the patient hostage, because we don't
have a right to practice orthodontics. We are granted a
license by the state, and we must conform to certain
administrative, legal, and ethical constraints. The good
news is that within these constraints is the ability to
cut our losses.
I think this dead horse has been beaten quite enough.

American Journal of Orthodontics and Dentofacial Orthopedics