by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the March 1999 issue of the Journal
Question: I have several accounts due that I am turning over to small claims court for the purpose of collection. I plan to name as defendants both the patient and his/her spouse. I have heard that there is a new law that will not allow me to proceed with collection from the spouse unless I have informed the spouse in advance. Is this true? If so, how should I go about informing my patients and their spouses, and may I have sample language I might use in a notice?
Answer: In May 1998, the Supreme Court changed the existing law in this area. In that landmark decision, the Supreme Court held that neither a husband nor a wife is liable, absent an express agreement, for necessaries supplied to the other spouse. Necessaries clearly include medical and dental services. Prior to the Supreme Court's ruling, a spouse was legally liable for the payment of dental services provided to the other spouse. A brief explanation is in order.
At common law, the "necessaries doctrine" essentially made husbands liable for all necessaries provided to their wives. The primary purpose was to assure that dependent wives received support from neglectful husbands. On the other hand, the common law doctrine did not recognize a reciprocal liability on the part of the wife for the husband's necessaries. Michigan later enacted the Married Women's Property Act (MWPA), which specifically declared that a wife's separate property is not subject to her husband's debts.
In 1983 the Michigan Court of Appeals held the MWPA unconstitutional as violative of the equal protection of the law clauses of the state and federal constitutions. The Court of Appeals, in eliminating the distinction between a wife and a husband in the context of liability for the other's debts, held that both spouses are liable for the medical expenses (and clearly by implication dental expenses) of the other spouse. The constitution requires a gender-neutral scheme. The Court of Appeals in the case before the Supreme Court last year followed the 1983 case and held that MWPA was unconstitutional and, therefore, a wife was held to be liable for the medical necessities of her husband. The Supreme Court reversed and held that MWPA was indeed constitutional and that it bars a judgment against a wife for her husband's medical expenses. Applying the gender-neutral constitutional standard, the court then abrogated the common law doctrine and held that neither a husband nor a wife is liable for the necessaries supplied to the other, absent an express agreement. The court determined that, when applied to married men only, the necessaries doctrine qualifies as gender-based discrimination and offends the principle of equal protection of the law. Therefore, if a wife is protected against claims for medical or dental fees incurred with respect to a husband, a husband must be protected in the same fashion against claims for medical or dental fees incurred with respect to a wife.
Your question implies that mere notification to a non-patient spouse will cause that spouse to be liable for the dental expenses of the patient spouse. This is erroneous. An express agreement by a non-patient spouse is required for that spouse to be liable for the debts of the patient spouse. Such an agreement can be simple, but it should be clear, and in writing. Sophisticated dental offices currently have payment policies which, among other things, require the patient to pay for all charges within a specified time period, to the extent there is either no insurance or the charge is not fully covered by insurance. That document, which is typically signed by the patient, should also be signed by the patient's spouse. For example, the patient's spouse could guarantee payment by adding the following language:
The undersigned, being the spouse of the patient named above, hereby guarantees full and prompt payment of all fees and expenses incurred by or on behalf of my spouse as a dental patient.
There is a fundamental legal issue as to whether the applicable Michigan law prior to the Supreme Court decision in May 1998 would apply to debts incurred prior to that decision. Although constitutional decisions are typically applied retroactively, there is some authority that would support the change only on a prospective basis. Legal research and analysis necessary to opine on this issue is beyond the scope of this column.