By Dan Schulte, J.D.
MDA Legal Counsel
From the July 2013 issue of the Journal
Question: A couple of times over the past year, I have started a course of orthodontic treatment with patients who have stopped making scheduled payments for the treatment. The reasons why vary — a change of insurance, loss of a job, etc. I’m afraid to suspend the course of treatment for nonpayment. Will I be faced with a patient abandonment claim? What can I do to legally prevent this from happening, or how can I force the patient to pay what is owed if I have to continue the course of treatment?
Answer: When you agree to accept payments over time in exchange for your services to be delivered over time you are entering into a contract with a patient. The contract is implied if nothing is in writing or is an express contract if you have reduced it to writing. (The best practice is to have a written agreement describing the services, their timing, the payments required, the consequences of nonpayment, etc.).
Unlike contracts that do not involve medical and dental services (where the supplier of the goods or services can freely provide for termination in the event of nonpayment) dentists must be cautious when terminating the dentist-patient relationship for nonpayment. MDA members must comply with the ADA/MDA Code of Ethics, Section 2.F., which provides that once you have undertaken a course of treatment you should not discontinue the treatment without giving the patient adequate notice and the opportunity to obtain services from another dentist. This ethical rule also requires that care be taken so that the patient’s oral health is not jeopardized by the discontinuance of treatment. In addition to the ethical rule, you may be faced with a patient’s claim of malpractice for abandonment.
If you are going to terminate the dentist-patient relationship due to nonpayment, you must do so carefully. The best practice would be to do so in writing, either hand-delivered to the patient in your office or sent via certified mail (return receipt requested). The letter should:
- state that nonpayment of your fees is the reason for the termination;
- specify the termination date;
- inform the patient that you will provide emergency care for the next 30 days only;
- advise the patient on the possible consequences of not completing the course of treatment.
- consider making a referral to another dentist (maybe a charity care clinic) that can complete the treatment; and
- consider offering the patient a copy of his or her records at no charge.
Obviously, if the patient truly cannot afford to complete paying for his orthodontic treatment your dismissal will not be a satisfactory result for him. However, your dismissal for nonpayment does not automatically mean that the patient will have a claim for abandonment against you. Patient abandonment is a form of malpractice. It only applies when a dentist terminates the dentist patient relationship: (1) at a critical stage of treatment; (2) without sufficient notice enabling the patient to find a replacement dentist to timely complete treatment; and (3) when an injury results. You should carefully consider whether these factors are present given the stage of the orthodontic treatment you are providing. Also, carefully consider what the ramifications are if the patient cannot afford to complete the treatment or to have the treatment completed-to-date reversed.
As you can see, these situations are difficult to get out of and there are risks associated with doing so. Care should be taken to avoid being in this situation in the first place. If the patient cannot afford to pay your entire fee up front, you should consider alternatives. Using CareCredit, obtaining the patient’s authorization for you to charge a credit card, obtaining a third party guarantee of the patient’s payment obligation, and performing a credit check on the patient are some of the things you can do to prevent this situation from occurring.