Sunday, December 01, 2002
By Richard D. Weber, J.D.
MDA Legal Counsel
Published in the December 2002 issue of the Journal
This month's "Dentistry and the Law" column answers questions submitted by members which require relatively short answers Portions have appeared previously in the Journal.
Question: In our office we sometimes see handicapped, underprivileged and/or psychiatric patients. The homes, caregivers or other non-guardians bring these patients to our office. For whatever reason it may be, the actual parents or guardians may not have contact with these patients. Hence, who should be responsible when a signature is needed on a health history, consent, or other necessary forms?
Answer: Most people have the legal capacity to make most decisions for themselves. This is true of patients and their ability to consent to treatment and to the release of their patient records to third parties, and their ability to contract for dental services. Simply because a patient is handicapped, underprivileged or a psychiatric patient does not mean that this patient does not have the legal capacity to make legal decisions or sign consents.
There are, however, two groups of people who cannot make legal decisions or sign consents for themselves: minors and incompetent people.
Minors are defined as children under the age of 18. With the exception of the few minors who have been legally "emancipated," or granted independence from their parents or guardian, a minor cannot independently consent to dental treatment. Minors are also incapable of entering into binding contracts, such as agreements to pay for dental services. These disabilities are also applicable to a person who has been declared to be legally incompetent. People are legally incompetent when they have been determined to be incompetent as the result of a legal proceeding designed for that purpose
Minors and incompetent people must have a person who is legally responsible for them and who can make decisions and sign consents on their behalf. In the case of a minor, this person must either be a parent or a guardian. An incompetent person must have a guardian appointed to make such decisions. In situations where a patient's consent and signature would be legally required, the dentist must obtain the consent and signature of the parent or guardian on behalf of a minor or a mentally incompetent person. Not obtaining consent from a parent or guardian in this situation is equivalent to not obtaining the consent of the patient.
Question: I'm updating my office signage. I practice in a professional corporation with other dentists. Are we required to list "P.C." or "Professional Corporation" on the signage? If not required by law, would it be a good business practice to do so?
Answer: Under the Michigan Professional Service Corporation Act, the corporation name must contain the words "Professional Corporation" or the abbreviation "P.C." In addition to the legal requirement, it is certainly good business practice to indicate that you are practicing in a professional corporation, not only in your office signage but in your correspondence, invoices and other communications to your patients or the public. Practicing in a professional corporation precludes vicarious liability among the respective dentists. If patients are led to believe that the practice is a partnership, however, vicarious liability might exist, notwithstanding the fact that the entity is a P.C.
Question: Do dentists have a legal obligation to provide after office hours and weekend emergency care for their patients?
Answer: There is no obligation established by statute or case law. The professional standard of practice for the dentist would be the proper focus. A recorded message could refer patients to the local hospital emergency room if the patient deems the case to be an emergency.