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Legal Services

by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the July 1993 issue of the Journal

A departing staff dentist asks...

Question: I am an employed dentist and I'm leaving the practice I'm currently employed at to start my own practice. May I tell the patients I have been seeing at the current practice about my departure, so that they can make a decision as to whether they wish to follow me?

Answer: Yes. The decision to follow you or not is solely up to the patient. Telling the patient that you are leaving is essential in order for the patient to make an informed decision on which dentist to retain. In the event an employment contract exists, it should be reviewed before notification so as to comply with any applicable requirement.

Question: If I don't inform the patients, am I in any way liable for future problems?

Answer: Yes. A treating dentist could be liable for abandonment if the patient is not informed. It is also conceivable that the dentist could be liable for professional negligence if a treatment plan is not properly completed.

Question: If I do tell them I am leaving the practice, can I be sued by the practice owner?

Answer: Generally, no; but, any contract must be adhered to. An employment contract may dictate the terms and method of notification and a no competition clause could create certain legal rights and responsibilities in this area.

A practice owner asks...

Question: My hygienist left my practice for another and notified my patients. Several left my practice. Do I have any recourse?

Answer: Generally, no. An employment contract could affect this answer if notification is covered in the contract or the hygienist actively solicits patients in violation of the contract.

Question: Should I have some type of agreement for an associate/hygienist to sign upon employment that would prohibit him or her from contacting patients in my practice upon their departure? I understand that a patient might inquire about the associate or hygienist's absence, but I'm mainly concerned about contact initiated by the departing employee.

Answer: A contract is advisable and a provision relative to contacting patients if an associate/hygienist leaves the practice can prevent misunderstandings. The dentist employer may wish to control the terms and method of notifying patients. Without this direction, the possibility of solicitation is present.

On patient records...

Question: Who owns the records of the patients, the clinic owner or the dentist who has been treating the patient on a regular basis?

Answer: The patient owns the information on the records and is entitled to copies, and the dentist owns the actual records. There is no clear law in Michigan as to whether the employer or clinic owner owns the records, or the treating dentist. This should be covered in an employment contract and a reasonable solution is to allow the treating dentist to obtain copies, but the original record would stay with the employer. A current bill pending in the legislature would codify the entire area of the healthcare records. Under that bill, the record itself would be the property of the dentist, but the information contained on the record would be the property of the patients, who would be authorized to copy the same. In the context of a clinic or health facility, the record itself would be the property of the health facility and would not be the property of the dentist who rendered the services. The treating dentist could, however, obtain copies of the records through the request of a patient. As MDA legal counsel, we will be reporting this comprehensive Healthcare Information Act if and when it is enacted into law.

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