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ABANDONMENT

AND

TERMINATION

Joseph P Graskemper DDS JD DABMM

FAGD FAES FICOI FASO FACLM

Associate Clinical Professor

Stonybrook School of Dental Medicine

This book integrates dental law, risk management, professionalism, and ethics, as all are interrelated in everyday practice. True cases show real examples of professional and ethical issues facing the practicing dentist Integrates various aspects of professionalism, ethics, law, and practice management Written by a practicing dentist with a law degree Offers perspectives on both the legal and dental aspects of ethical and professional questions

Professional Responsibility in Dentistry A Practical Guide to Law and Ethics

Joseph P. Graskemper

Paperback | July 2011|220 pages | 978-0-470-95977-0|$51.99

Order your copy today at wiley.com

Doctor – Patient Relationship

Contractually based relationship with a

fiduciary duty to the patient

Starts when the doctor gives an opinion upon

which the patient would reasonably rely on.

Abandonment can not occur without a valid

Dr-Pt relationship Easter v. Lexington Memorial Hosp., 303 N.C. 303, 278 S.E. 2d 253 (1984)

Dentist has duty to complete the services

agreed to

Can not withhold completion of treatment

agreed upon (when pt. at critical stage of tx)

Be available for patients after hours or

arrange for coverage

Failure to send a promised “recall” card

upon which the patient has relied on

(possible new)

Abandonment

It occurs when there is a withdrawal from

treatment of a patient without giving

reasonable notice or providing a competent

replacement. (Cole v. Marshall Medical Center, 2007

Cal.App. Unpub. LEXIS 4490, Hill v. Medlantic Health care

Group, 933 A2nd 314 (D.C. 2007), Lee v. Dewbre, 362 S.W.

2nd 900 (Tex.Civ. App. Amarillo 1962) )

ADA Code of Ethics

Section 2.F

Once a dentist has undertaken a course of

treatment, the dentist should not discontinue

that treatment without giving the patient

adequate notice and the opportunity to obtain

the services of another dentist. Care should be

taken that the patient’s oral health is not

jeopardized in the process.

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Also the refusal to initiate treatment may be

seen as abandonment. (untimely delay to start

treatment or to continue treatment)

It does not occur when termination is by

mutual consent or when the relationship is

ended by the patient.

Inadvertent Abandonment

Occurs through:

misunderstandings about insurance coverage,

after-hours coverage,

poor follow-up,

failure to give proper after care instructions

refusing patient to talk to doctor,

scheduling appointment so far in advance that

patient is further injured (scheduling system

failure)

ADA Statement

on Patient rights and

Responsibilities

The patient has a responsibility to participate

in health care decisions, to inquire about

treatment options, ask questions if you are

uncertain about your dental treatment or plan

and for consequences resulting from…not

following the agreed upon treatment plan

Constructive Abandonment

Doctor intends to terminate the relationship

without the patient’s knowledge or consent

(Intentional Abandonment - Failure to pay but

not end dr-pt relationship, possible punitive

damages)

Doctor found to have failed to attend to the

patient as frequently as due care in treatment

would demand. (not responding to calls)

Causes of Action

Negligence

Failure to see patient as required

Improperly concluded that patient did not require

further treatment

Both, of course, require the patient sustained

damages

Breach of Contract Chase v. Clinton County, 217 N.W. 565 (Mich. 1928);

Thomas v. Corso, 265 Md. 84, 288 A. 2d 379 (1972)

Must Have All 5 Elements

1. Health care treatment was unreasonably

discontinued

2. The termination of health care was contrary to

the patient’s will or without the patient’s

knowledge

3. The health care provider failed to arrange for

care by another appropriate skilled health care

provider

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4. The health care provider should have

reasonably foreseen that harm to the patient

would arise from the termination of the care

(proximate cause)

5. The patient actually suffered harm or loss as a

result of the discontinuance of care.

Patient must prove that the doctor ended the

relationship without good reason or without

sufficient notice to allow the patient to find

another doctor and the patient was injured as a

result.

Doctor – Patient Relationship

When Does It End

Treatment completed

Patient goes to another dentist

Dentist or patient breaches contract

Dentist and patient agree to end it

Dentist or patient dies or disabled/illness

Dentist terminates practice

Dentist terminates relationship

Patient Dismissal

1. Patient did not fulfill payment agreement

2. Not showing up for appointments

3. Openly displays hostility to doctor and/or

staff

4. Not complied with home-care instructions

and jeopardizing treatment outcome

5. Lied on the health history

6. Break down in the interpersonal doctor-

patient relationship

NOT just a phone call or not allowing patient to

make an appointment

Patient Termination

1. Give date as to when termination begins

(“as of”)

2. Give reason as to why patient terminated

(state reason in an objective, non-

inflammatory manner such that it will not

inflame the patient—loss or breakdown of

trust, failure to fulfill financial obligations,

numerous missed appointments affecting

care, etc.)

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3. Must cover emergencies for a reasonable time

(2 weeks to 2 months depending on location

of practice)

4. Inform patient of his or her current condition

and treatment needs and patient should be in

a stabile condition. (Prevent abandonment

and ethically non-malfeasance)

5. How to find new dentist (don’t give names

rather a referral to the local dental society)

6. Willing to transfer necessary records (only

copies and a treatment summary [per state] if

necessary with a signed authorization)

7. State how any financial balance will be

handled (terms for payment expected/written

off/refund )

Must not terminate patient for something

covered by law (age, race, disability, HIV,

AIDS, etc.)

Must finish any treatment started to a point that

no harm to the patient (no temps without a

fully documented informed consent)

Must continue care if only reasonable (skill

and/or distance) source of care till safely

transferred to another

Must continue care if patient is on pre-paid

health plan till 3rd party payer is notified and

safely transferred

If in a group practice, be sure patient is

terminated from the entire group practice and

not just the selected provider

May reasonably charge for reproduction of

records

Must not refuse transfer of records if money is

owed

Be sure to send certified, return receipt mail

Patient Refunds

Must have an express written Release of

Liability/All Claims with an anti-defamation

clause.

Anti-Defamation Clause

Non-Disparagement Clause

“Disparage” shall mean any negative

statement, whether written or oral, about

[Dentist/Dental Office] to cast doubt and made

to or tends to influence the public not to buy. Black’s Law Dictionary

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“Defamation” –Holding up a person to

ridicule, scorn or contempt in a respectable or

considerable part of the community; includes

libel and slander.

A communication is defamatory if it tends to

harm the reputation of another as to lower him

in the estimation of the community or to deter

third persons from associating or dealing with

him. Black Law Dictionary

During the time and thereafter,

[Employee/Patient] agrees to take no action

(written or oral) which is intended, or would

reasonably be expected, to harm

[Dentist/Dental Office] its/their reputation or

which would reasonably be expected to lead to

unwanted or unfavorable publicity to the

[Dentist/Dental Office].

Take Patient Back

Pt. cured financial problem

Pt. appologized for behavior

What would you do?

Mrs. Good Patient calls and requests her records

be transferred for herself and her family (4

children and husband). The family balance is

about $600 of which she pays $50 a month

because the ins. co. did not cover as much as

estimated. She is a little upset that the ins. co.

did not cover $800 of the treatment you did

and was not told that there would be so much

owed. She finishes with “I should let my

Facebook friends know”