by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the June 1997 issue of the Journal
Question: I am a member of a local study club, and the club is a subsidiary of the Seattle Study Club, which provides information on setting up a study club. One of the elements we wish to incorporate into our study club is assisting each other with treatment planning. This is how we intend to proceed:
When one of the members of the group has a difficult case, he can bring it to the group for discussion.
We may invite the patient involved to a group meeting so that the group can clinically examine the patient.
We will offer our verbal comments in treatment planning to the club member only. There will be nothing in writing and there will be no discussions in front of the patient.
We would like to determine whether there are potential legal ramifications to this proposal.
Answer: The primary issue is whether or not the members of the group would have liability exposure to the patient. This requires careful analysis. It is well-settled law in Michigan that a professional dentist-patient relationship is a legal prerequisite to a professional malpractice cause of action against a dentist. In the absence of a referral, a formal consultation, or some other contractual relationship, no dentist-patient relationship arises from a treating dentist's solicitation of a colleague's informal opinion on patient treatment. Whether or not a dentist-patient relationship exists, however, depends upon the facts in each case.
In 1990, the Michigan Court of Appeals held that no physician-patient relationship was created, as a matter of law, when a physician conferred with a treating physician and the medical opinions were addressed directly to the treating physician as a colleague, and not to the plaintiff patient. The communications were through telephone conversations between the treating physician and his colleague, and the colleague had no direct contact with the patient by way of examination. Nor did the colleague review the patient's chart. The colleague simply gave opinions over the telephone to the treating physician, based on the case history related by the treating physician. In addition to holding that this did not create a physician-patient relationship, the Court opined that the extension of potential malpractice liability to doctors with whom a treating doctor has merely conferred would unacceptably inhibit the exchange of information and expertise among doctors. This would benefit neither patients nor the profession.
The fact that the study club may invite the patient to a meeting so that the group can clinically examine the patient is a step beyond the facts in the Michigan Court of Appeals decision. Therefore, there can be no certainty that this Michigan law would extend to protect the nontreating dentists in the study club. It should be made clear to the patient that a study club review does not create a dentist-patient relationship with any of the nontreating dentists, and does not represent any referral or other contractual relationship. It is simply meant to provide an exchange of information among dentists. With this clear understanding, it is a probability, although not a certainty, that Michigan courts would not find the existence of a dentist-patient relationship between the nontreating group members and the patient.
The dentist-patient privilege also must be considered. 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 specified exceptions which appear to be inapplicable in this situation, the treating dentist is legally bound not to disclose such information. Therefore, unless the identity of the patient is not disclosed, the treating dentist should obtain a waiver of the privilege from the patient before the patient's records and other confidential information are disseminated among the study group.
Finally, it should be understood that the conclusions, recommendations and other discussions among the group and the treating dentist are not protected from court subpoena or other discovery in litigation. The study group would not be deemed to be a peer review entity as defined under Michigan law, and thus would not be afforded peer review confidentiality and limited immunity. Therefore, it is conceivable that the study group members could end up testifying in a malpractice case for or against the treating dentist. This potential exists even if there are no written documents. Oral testimony can be elicited by way of deposition or at trial.
This answer outlines the legal ramifications, but gives no legal opinions, for the reason that each case must be analyzed on its own unique facts. The purpose of such dental study groups is clearly beneficial to the dentists and patients. The benefits of this activity probably outweigh the potential legal problems, but the participants in the study group who engage in treatment planning should make this decision for themselves.