By Dan Schulte, J.D.
MDA Legal Counsel
From the March 2011 issue of the Journal
Question: I was employed by Allcare Dental. A few weeks ago my practice location was shut down. I was not given any notice this was going to happen. I believe Allcare’s landlord has taken control of the premises — the locks have been changed, and I have no access. Should I be worried about patients claiming abandonment as a result of this abrupt termination of their treatment? Can I be held liable for damages by my patients with incomplete treatments?
Answer: Once a dentist-patient relationship is established, a dentist is under both an ethical and legal obligation to provide services until the relationship has been properly terminated. The relationship may be terminated by: (1) the mutual consent of the patient and the dentist; (2) the patient unilaterally; or (3) the dentist unilaterally.
Under normal circumstances you would take care when terminating a dentist-patient relationship so that claims of abandonment by patients can be avoided. The circumstances you describe, however, are extreme. Obviously, as an employed dentist locked out of the practice and without access to patient records you are in no position to take prudent steps such as sending written notice to your patients, explaining in advance that the practice is ceasing operations, and making appropriate referrals so that treatment may be continued with another dentist.
Fortunately, not all unilateral terminations of the dentist-patient relationship are likely to enable a patient to sue you for "abandonment," or to seek to recover money damages. Generally, abandonment is a form of malpractice. It would result from the dentist-patient relationship being terminated at an unreasonable time and without giving the patient a chance to find an equally qualified replacement dentist. But for a claim of abandonment to be sustainable, the patient must show more than this type of termination of the relationship. In addition, the patient must prove he/she was injured as a result of the termination of treatment.
The leading case on patient abandonment is a 2003 Michigan Court of Appeals decision. In that case, an obstetrician withdrew from treating a high-risk patient very late in her pregnancy. The obstetrician withdrew following his discovery that the patient had filed a lawsuit against another physician. As a result of the physician’s termination of the relationship, the patient’s scheduled cesarean section delivery was delayed for four days, during which the patient suffered a miscarriage.
This is an extreme case. However, it illustrates the point that a patient may sue for and receive damages if injuries (for example, the miscarriage) result from the termination of the patient’s treatment at the wrong time and/or without proper notice.
It is to be hoped that the interruption of treatment caused by Allcare ceasing business operations will not result in any physical harm to any of the patients you had been treating. You should notify your malpractice insurance carrier if you are concerned about patients in the middle of a course of treatment. If your coverage was provided by Allcare, perhaps you have a certificate of coverage or other information that will enable you to speak with an agent or other representative of the carrier.
Finally, in any claim of abandonment your status as an employee who had no prior notice of the practice shutting down would be a major part of your defense. It is hard to imagine how you can be held liable for not providing advance notice, making proper referrals, finishing treatment, etc., under these circumstances when you, yourself had no advance notice and your access to the practice and the patient records was arbitrarily cut off.