A few days ago I read an article in the “Legal Issues” section of the October issue of the AAO Bulletin. The first part of this article was an interesting situation faced by a Doctor in Austin, TX. Without going into much detail, this Doctor had a clinically and socially uncooperative (rude, demanding, clinically uncooperative and threatening) adult patient. The Doctor chose to dismiss this patient from the practice and followed accepted criteria to do so up to the point of sending the final letter terminating further treatment. He was reluctant to send that letter for a few different reasons but mostly because she had lingual braces on and he wanted to be able to remove them properly. On the other hand, he recognized that since this patient was refusing to come in for an appointment that his hands were tied. The AAO Legal Counsel, Kevin Dillard, responded by mentioning the things the AAO legal office can do for the membership but he failed to answer the question the Doctor had.
I suppose it is important to recognize the role that a lawyer working for the AAO and on behalf of its membership plays. The lawyer’s role is not to help an orthodontist become more profitable, to become more efficient, or to have a better quality of life. The lawyer’s role is to provide advice that keeps orthodontists safe from malpractice suits. Most reasonable orthodontists would cheer that role and be quite pleased that such a position exists within the AAO. If I were an orthodontist and a member of the AAO I suppose I would be among that group.
Unfortunately, the desire to avoid risk is quite often in direct conflict with the desire to be profitable, the desire for efficiency and, as in the case with this Doctor, the desire to have a high quality of life within the practice. Said differently, accepting the advice of an AAO attorney, or any other source, whose primary goal is to keep you free from risk, can often stifle performance, profitability, and the quality of life within the practice. Another factor to consider is that quite often the risk associated with keeping a patient in the practice can easily be far greater than the risk of dismissing them!
An excellent example of advice that is designed to avoid any risk but that can ruin quality of life can be seen later on in this same Bulletin article. Mr. Dillard states, in speaking about a delinquent patient, “The standard in this area is that the patient’s treatment and his or her financial or payment issues should be kept separate. The non-paying patient should not be put on Maintenance if that would not yet be occurring as part of the treatment plan.”
With respect to Mr. Dillard and the AAO legal office, I believe this is simply bad advice! There is absolutely no history, at least not in the past 40-50 years, of any orthodontist being successfully sued for putting a patient into Maintenance or for dismissing a delinquent patient from the practice, as long as that orthodontist followed proper protocol in the dismissal. I cannot recall the details but in a Case Law class I attended as a second year student in 1967 I seem to remember a U.S. Supreme Court decision we discussed which specifically affirmed the right of a doctor to dismiss a patient for cause.
Again, proper protocol is imperative if you are going to have the dual benefit of being able to rid yourself of a problem patient while avoiding risk of a malpractice suit. Fortunately the protocol is simple and not time consuming.
1. Document in a permanent fashion, every interaction of consequence with the patient. That means you must document each collection letter or telephone call (even “telephoned, left message”) that you sent or made to a delinquent account. You must document the basics of the conversation during the call. For instances of poor cooperation or inappropriate behavior, you must document each occurrence where a patient or parent was significantly rude, demanding, missed an appointment, had poor clinical cooperation, poor oral health, or was in any other manner not behaving themselves. As examples, the oral health/brushing grades given by most practices take almost no time and are adequate initial documentation of clinical cooperation issues. “TRLM” is perfectly acceptable shorthand for “Telephoned Residence, Left Message.”
2. Once the frequency or severity of the problem you are trying to resolve is significant enough that dismissal is being considered, meaning of course that your prior efforts to resolve the problem have failed, you must send a notice to that effect (you are considering dismissal) to the patient/parent. That communication should not be done by telephone. It must be done by letter and Z&A clients know to send that letter certified with return receipt. It is at this point that placing a patient into Maintenance (defined as a brief and specific (30 days recommended but 60 days maximum!!!) period of time during which appointments may still be kept and emergencies will still be seen, but no progressive treatment is done) is safe and an extremely powerful tool to resolve problems such as poor clinical cooperation, failed appointments, and delinquency. In fact, 34+ years of history has proven that notifying a parent that their child’s treatment has temporarily been placed on hold pending resolution of the problem completely resolved delinquency and other problems more than 75% of the time.
3. Delinquency control regulations (actually case law resulting from those regulations) forbids an orthodontic practice from threatening any activity such as putting the patient into Maintenance or dismissing them from the practice unless you actually intend to take that action, so don’t make idle threats you have no intention of following through on. For instance, you may not put a patient into Maintenance and then if the patient comes in for an appointment during the period they are in Maintenance, change their elastics, replace an archwire, or do anything else that progresses treatment.
4. Once you have decided that the problem cannot be solved and that dismissal of a patient is what is best for the well-being of the practice (and usually for the patient as well!), the formal letter (again, certified return receipt) of dismissal must be sent. It must suggest, strongly, that the patient seek the services of another orthodontist and advise the patient/parent that you will remove the appliances (at no charge!!!) should they choose not to have another orthodontist take over treatment. Interestingly, the proper letter to send is available from the same AAO legal office that recommends you not dismiss a patient. That letter is contained in a group of documents titled “Terminating the Doctor/Patient Relationship.”
As an aside, while not required by any rule or regulation, our clients will always give a dismissed patient who has had their appliances removed an Essix or similar retainer, again at no charge, although no retainer visits are allowed as the patient has been dismissed. Why lose the good work you have done so far?
So, back to this Doctor’s problem patient. While I suspect this patient is already long gone from the practice, my recommendation to resolve the issue is to send that patient packing without a second thought! Since I know that patient’s behavior was well documented by the practice and that every reasonable effort was made to resolve the problem, and since the behavior was threatening and damaging to the well-being of the staff in particular and to the practice in general, sending a properly worded letter of dismissal is the only correct thing to do.
You must endure some risk, calculated risk, in order to prosper!
