by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the June 1988 issue of the Journal
Question: When, if ever, may a dentist "fire" a patient? What is the right way to accomplish such a "firing?"
Answer: Sad but true, experienced practitioners have had to confront these questions, and in certain cases risk imposition of tort liability in the process. Courts use the term "abandonment" in analyzing the basis for this liability.
If practitioners follow a few basic legal precepts, liability for abandonment is easily avoided.
A dentist-patient relationship is consensual. Dentists may choose their patients and are not required to accept all who apply for care. However, a dentist can voluntarily assume an obligation to accept all patients, by agreeing to work in a walk-in clinic, emergency room, etc.
Once the relationship begins, the dentist has ongoing responsibilities for the patient's dental care. While the dentist is away, he or she is responsible for arranging coverage by other competent dentists. Absent negligent entrustment to a known incompetent, there is no vicarious liability for the negligence of the covering dentist, unless the covering dentist is a common law agent of the referring dentist. A fiduciary obligation of confidentiality continues during the relationship and after its termination.
Termination of Relationship - Firing the Patient
The dentist-patient relationship continues until (1) it is ended by mutual agreement; (2) the patient dismisses the dentist; or (3) the dentist unilaterally terminates the relationship. In the third instance, the dentist must give the patient reasonable notice of the intention to withdraw from the case so that the patient can obtain other dental attention and the dentist should be available to consult with the new dentist and provide medical records upon request.
The dentist's right to terminate the relationship cannot be exercised on short notice against patients in the throes of a dental emergency. If the patient will be damaged by having to wait a period of time for a second dentist to assume care, the original dentist can be held liable for abandonment.
For example, suppose a dentist performs an extraction for a patient and gives routine instructions to call the office should bleeding or signs of infection occur. The patient pays for the extraction by check. The check bounces. The patient calls the dentist two days later, reporting a high fever and a swollen jaw. The dentist refuses to take the call because of the bounced the check. The patient has no other dentist, and a delay ensues before proper care is administered, resulting in Ludwig's angina, a severe sub-lingual cellulitis, airway compromise and death. Intubation and IV Penicillin would have cured the patient in two weeks.
On those facts, the patient's estate would have an enforceable abandonment claim against the dentist, because the termination of the dentist-patient relationship occurred in the midst of an emergency, compromising the patient's health. If there had been no ongoing emergency, and if the patient had ample time to obtain dental care from another source with no damages incident to delay, nonpayment would be a legitimate reason to "fire" the patient.
To restate the principle: the dentist can fire the patient at any time for any reason or no reason, as long as time is not of the essence and the patient will suffer no adverse consequences by waiting to obtain dental care from another source. Civil rights laws create a potential exception to this general principle, which is beyond the scope of this article.
Interaction with Other Torts
The hideous example cited above involving the dead patient whose check bounced is, happily, a fabrication. The author knows of no case remotely resembling those facts. It was used to illustrate the principle of abandonment.
However, the author does know of another actual case in which abandonment became an issue because of the careless way in which a dentist set about to "fire" his patient.
This case was not tried in court, but was settled. It was not handled by this law firm, but became a miniature tempest in a teapot in legal circles. The facts recounted here are based on interviews with the participants.
As the story goes, Dr. X didn't like attorneys. He had determined that he would not provide dental services to attorneys, or members of their families. An extreme position, but not illegal. The relationship is consensual. The dentist may choose his or her patient, and is not required to accept anyone. As long as he is not violating civil rights laws, he is free to refuse patients for no good reason.
A female patient was referred to him for an extraction. The patient herself was not an attorney, but her husband was. She came into the office for the extraction, filled out a new patient form, which disclosed her husband's occupation and was pre-medicated and anesthetized for the procedure. Dr. X then appeared on the scene to perform the extraction. Dr. X perused the new patient information form and learned that his patient was married to an attorney. In a manner the patient found offensive, he announced that he did not treat attorneys or their families as a matter of policy, leaving the anesthetized patient in the chair without treatment.
The anesthetic wore off without permanent complications, and the patient had the extraction done elsewhere without permanent injury. Nonetheless, she brought an action against the dentist, alleging abandonment and battery. The abandonment theory was valid because Dr. X had in effect accepted the patient for the extraction by anesthetizing her and by failing to provide the extraction, he was putting the patient through the discomfort of the anesthetic itself. If he had refused to provide care to the patient before the anesthetic had been given, there would have been no liability, since the patient would have merely inconvenienced.
Please note on the same facts, a battery is equally applicable. Battery is an offensive, unconsented to touching. The patient's submission to an anesthetic was premised upon the doctor's implied promise to extract a tooth. His refusal to carry out the extraction vitiated the patient's consent, making the administration of the anesthetic a battery.
This case was settled, and by definition of a settlement is not an admission of liability or culpability. However, it should be noted that the dentist defendant would have had to face a Wayne County jury had he not settled the case, and certainly the plaintiff's allegation stated a claim upon which plaintiff could recover if the charges were proven. The settlement was reportedly modest, because the patient did not suffer significant damages. It does, however, illustrate a point.
Absent of any issue of discrimination, a dentist may terminate the dentist-patient relationship for any reason or no reason, since the relationship by definition is consensual (unless the dentist has voluntarily assumed an obligation to accept all patients in a given setting). However, the right of the dentist to terminate the relationship must not place the patient in peril. As long as there is no ongoing emergency and the patient can obtain other treatment elsewhere without suffering damages incident to delay, the dentist may terminate the relationship.
The law of abandonment comports with common sense. Use of sober good judgment can almost always protect the practitioner from exposure for abandonment.