Friday, November 01, 1996
by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the November 1996 issue of the Journal
Question: I have a married couple in my practice who are currently going through a divorce. The arrangement is such that the husband is responsible for the payment of the wife's dental treatment. The wife has recently undergone extensive treatment and I have made her clinical records available to her. She has requested a full financial accounting, including the amounts billed to her husband, the amounts paid to date and payment arrangements.
I feel I am being dragged into the middle of their divorce, and do not wish to subject my practice to that. Am I legally obligated to provide her with the financial information she is verbally requesting? I have informed her that I have made the financial information available to her husband, and that she and her attorney may obtain it from him.
Answer: Under Michigan law, information relative to the care and treatment of a dental patient acquired as a result of providing professional dental services is confidential and privileged. Except with the written consent of the patient, and subject to specific exceptions, a dentist must not disclose that information. It is also the law in Michigan that the patient has a right to the information contained in the medical records. Although the original records should always be retained by the dentist, copies should be given to the patient upon request.
These are fairly clear rules, but the application of these rules to the facts presented is not so clear.
The purpose of the rule that dental information be furnished to the patient upon request is to make sure that the patient is informed of his or her dental health and treatment. It would not appear that furnishing financial information would further this purpose. Therefore, there appears to be no clear legal requirement that financial information be furnished to the patient wife in the context of this divorce dispute.
On the other hand, prudence would dictate that information as to the amount of fees billed, as opposed to payment arrangements, be provided for the reason that the wife is the patient and there appears to be no reason why the information should not be released. Although financial information does not fall clearly within the rule requiring that the patient be furnished with copies of records upon request, it is likely that a court would require that the amount of the fees be furnished to the patient.
The husband has no right to receive any information relative to the care and treatment of his wife. Although a disclosure to a third party payor of information relating to fees is an exception to the privilege, it is unlikely that the litigant husband would be deemed to be a third party payor under the intent of this exception. The question, then, is whether disclosing the financial information to the husband would violate the privilege belonging to the wife. Any information accompanying the financial data indicating the diagnosis or treatment would violate the privilege. Therefore, any information given to the husband should be carefully screened, so that it does not in any way disclose the diagnosis or treatment to which it relates.
Any dentist caught between divorcing patients understandably does not want to take sides with either party. The safe practice is to obtain written consent from both parties as to what information should be furnished to each party. If they cannot agree, the judge should be requested by one of the parties to enter an order providing for the specific disclosure of information.
Question: I am an orthodontist and have a minor patient in my practice whose parents are going through a divorce. The mother has been awarded custody of the minor, and the father is responsible for paying the orthodontic fees. The father is questioning necessity of treatment, my fees, and many other things in order to make it difficult for the mother. The mother is demanding that treatment take place on schedule regardless of payment. She is not willing to pursue the issue legally against her husband. What can or should I do?
Answer: Michigan law establishes that a parent's duty to support a minor child requires the parent to furnish all necessaries essential to the health and comfort of the child, including medical and dental care. The court has mandated that the child's father is responsible for payment of all orthodontic treatment, and the father must abide by this court order. If the father has questions about the extent of his payment obligation, they should be addressed to the court, not to the orthodontist. Failure to comply with the court order would likely result in the father being held in contempt of court, with a resultant fine and possible jail time.
The orthodontist's primary duty is to the child patient. Therefore, withholding services to force payment is not a viable alternative unless that action would not jeopardize the dental health of the child. Although the mother states that she is not willing to pursue the issue legally against her husband, it is her obligation to do so. In a divorce context, a judge typically hears issues such as noncompliance with court orders on short notice. If the father is held to be in violation of the order, it is likely that costs would be imposed against the father to reimburse the mother for her expenses in pursuing enforcement of the order.
It is not unreasonable for a father to question the necessity of treatment and fees. It would therefore be prudent for the orthodontist to attempt to answer the father's questions. On the other hand, if this is a divorce drudge and the husband is trying to give the wife a hard time, with the consequence that the orthodontist is not paid, it is the mother's responsibility to seek enforcement of the court order.
If the mother will not take this action, the orthodontist should require that the mother pay the fees. She can then pursue reimbursement at a subsequent time when the divorce becomes final. The orthodontist may ultimately seek judicial relief to collect against the husband, but this is obviously not an acceptable alternative.