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Legal Services

by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the March 1995 issue of the Journal

Question: Some dental procedures create greater risks of poor results than others. Dentists have been advised to obtain informed consent from patients. Why can't dentists also include in these informed consent documents a release of liability? If the patient signs such a release, is it enforceable?

Answer: The Michigan Court of Appeals recently reviewed the validity of an exculpatory agreement executed by a medical patient prior to receiving treatment. The court held that the exculpatory agreement is invalid and unenforceable as against public policy (Cudnik vs. Beaumont Hospital, C.A. No. 156623).

The patient received post-operative radiation therapy at Beaumont Hospital after undergoing surgery for prostate cancer. Before receiving the radiation therapy, the patient signed an informed consent document which also provided for a release of the physicians and staff of the hospital from all suits, claims, liability or demands arising out of the treatment. Some time thereafter, the patient was diagnosed as suffering from a post radiation ulcer burn at the site where he received the radiation therapy. The patient died and a wrongful death medical malpractice case was commenced. The complaint alleged that the radiation therapy was negligently administered and was the proximate cause of the patient death. The trial court dismissed the case on the basis that the patient had signed a release. The Court of Appeals reversed and held that the release was invalid and unenforceable as against public policy.

Although the Cudnik decision involves a pre-treatment release applicable to medial treatment, the decision would clearly apply to dental treatment. The Court of Appeals recognized that, as a general proposition, parties are free to enter into any contract at their will, provided that the particular contract does not violate the law or contravene public policy. The court recognized other settings in which exculpatory agreements or releases that absolve a party from liability for damages caused by a party's subsequent negligence were upheld. These included cases involving such circumstances as a festival event and athletic facility. The court recognized, however, that the overwhelming majority of other jurisdictions that have addressed this question relative to a medical malpractice claim have held that such agreements are invalid and unenforceable because medical treatment involves a particularly sensitive area of public interest. There is little question but that the court would make the same finding relative to dental treatment.

The court made clear that this decision covers only releases or covenants not to sue that are executed in cases of medical or dental malpractice are invalid. Releases executed after initiation of a claim or the occurrence of a loss, such as pursuant to a settlement, are valid and enforceable.

This recent decision presents no surprises. Knowledgeable health care attorneys have never considered pretreatment exculpatory agreements in the delivery of health care to be enforceable in Michigan, notwithstanding the lack of judicial authority. Perhaps the most significant aspect of the decision is that it has taken until November 7, 1994 for a Michigan appellate court to delineate this significant rule of law.

Question: I have a patient who is an habitual "no show" and has a substantial unpaid balance which has been due for an unreasonable amount of time. I now hear that she has left my practice and is seeking services from a colleague. May I inform the colleague of these experiences I have had with his new patient?

Answer: There is no clear legal authority on this issue. Such patient "attributes" are not protected by the dentist-patient privilege. The information could be placed in the patient's records and transmitted in that fashion to the new dentist. So long as the information is accurately conveyed (through records or otherwise) to the new dentist, there should be no liability for defamation (libel or slander) or any other tortuous conduct. If the information is inaccurate, however, the informing dentist could have liability exposure. Certainly such information, particularly a "no show" pattern, would be important for the new dentist to know for treatment purposes.

It should be understood that the dentist has a legal and ethical obligation to furnish copies of the records to the patient or a new dentist upon payment of a reasonable copying charge, even if the patient's account is not paid in full. In other words, the dentist cannot put a hold on the records as a condition of payment.

Question: I grew frustrated with a few patients who either did not show for appointments or canceled at the last minute. I started charging them for this, but have been challenged by some patients. I would like to continue to bill for missed, late, or canceled appointments, but I am concerned as to whether this is legal.

Answer: Under general principles of contract law, such charges should be legally enforceable as long as the patient is notified of the charge prior to scheduling the appointment. Absent prior notification, the charge would not be part of the "agreement" between the dentist and patient, and would be unenforceable. The patient should be notified in writing of the charge, perhaps on an appointment card and/or by a sign posted in the dentist's office. A patient who has been so notified of this policy evidences acceptance of the condition by scheduling the appointment.

Posted in: Treatment Issues

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