We have recently received a number of calls and emails from clients requesting our opinion on a reply to a question asked of the AAO legal office that was published in the October “Bulletin” (page 24). That page was devoted to a topic titled “Top 20 Legal Questions from AAO Members Answered.” Each of the inquiries we received was regarding the second of the twenty questions which was, “Can a doctor put a patient into ‘Maintenance’ until their account is current?” The answer was, “No. The doctor should never do anything that is contrary to the treatment plan because of financial issues with the patient. In some circumstances, termination of the doctor-patient relationship due to account delinquencies is possible. In those cases, the decision should be strictly between continuing the treatment plan and termination.”
Quite a few years ago I read in the then version of the AAO “Bulletin” almost the exact same statement by Dr. Laurance Jerrold, an attorney and orthodontist who I believe was an advisor to the AAO Legal Office at the time. I heard it again from another attorney during a panel discussion at an AAO meeting that I was on with him. This attorney said basically the same thing, that his recommendation was that a patient never be put into Maintenance and should never be dismissed from treatment for financial reasons. Of course, I challenged him on both of those issues. I showed him that the AAO legal office had actually published a formal opinion labeled “Terminating the Doctor Patient Relationship” that detailed the procedures to dismiss a patient who was delinquent. He then agreed that patient dismissals, done correctly, were safe.
Putting a seriously delinquent patient into Maintenance (putting active treatment on hold) is problematic only if that patient is kept in Maintenance long enough that a plaintiff’s attorney could make a case for either “abandonment” or “supervised neglect.” It is for that reason that we have always taught that no patient should ever be put into Maintenance for longer than 30 days, except in the most rare situations, and even then, never longer than 60 days. Neither abandonment nor supervised neglect can be claimed when many clinical cases routinely go 2-3 months without appointments; and if you add in failed appointments, half of most orthodontists’ patients have had more than 60 days between appointments from time to time.
Our conservative training with this issue of Maintenance and Dismissal has kept our clients safe. There has never been a successful Maintenance related lawsuit against any orthodontist in the US, when that patient’s Maintenance period was properly handled! Among the Zuelke client base, there has never even been a lawsuit filed, for Maintenance or Dismissal! When delinquent patients’ attorneys see the collection letter sequence our clients use, and the see the certified letters of proper warning, and they see the extremely brief period of time the patient was in Maintenance, they simply decline to take the case because they know they could not win. Remember though! I said that the Maintenance period must be properly handled! Maintenance means exactly that, no progressive treatment, no new archwires, no new ligature ties. The US “Fair Debt Collection Practices Act” says, among many other things, that you may not threaten your delinquent patient/parent with any activity that you do not actually take.
Having said all that, the answer to the actual question asked in that “Bulletin” was completely correct. The question was, “Can a doctor put a patient into Maintenance until their account is current?” Clearly the answer to that question is, “Absolutely not!!!” 30 days, yes. 60 days in special circumstances, yes, but not “until their account is current.”