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It's just a phase
LITIGATION AND LEGISLATION
It's just a phase Laurance Jerrold Brooklyn, NY
A
reader wrote me the following.
Larry, do you have any insight into the gray area dealing with the transition from phase 1 (early treatment) to phase 2 (secondary treatment)? Doesn't the nature of early treatment create an “open endedness” to the doctor-patient relationship? The waters get muddied because most practices I'm aware of either have phase 1 and phase 2 fees, or give some type of credit for what was paid during phase 1 to be applied to the phase 2 fee. This being the case, if you want to terminate the doctor-patient relationship in these phase 1 to phase 2 cases, I wonder where the financial obligations regarding treatment begin and end? Take for instance a 13-year-old boy I treated in phase 1, from ages 9 to 12.5 years, with an expander, maxillary 2-2 brackets, maxillary retainer, and lower lip bumper. The child had mandibular retrognathia, and during treatment his lower jaw did not grow very much (the parent had been informed that the success of early treatment depended on how well the mandible responded). The other day, the patient's mother came into the office with a full head of steam because her general dentist was telling her that the phase 1 treatment was a waste and that the kid still has an overbite (naturally, the general dentist did not call to get my side of the story). Reviewing the kid's chart, there were multiple instances of broken and lost appliances, so this has not been a good relationship from the beginning. I politely told her that she is free to seek another opinion and that phase 1 treatment was never intended to alleviate secondary treatment. She then started in with the money issue. If she goes elsewhere, she will have to pay a full treatment fee, so she'd like to have her money back for the phase 1 treatment. Long story short, the questions below concern the practitioner's legal, fiduciary, and ethical duties regarding the phase 1 to phase 2 treatment interface as well as any related clinical comments.
Program director, Orthodontics and Dentofacial Orthopedics, NYU-Lutheran Medical Center, Department of Dental Medicine, Brooklyn, NY. Am J Orthod Dentofacial Orthop 2016;149:766-8 0889-5406/$36.00 Copyright Ó 2016 by the American Association of Orthodontists. http://dx.doi.org/10.1016/j.ajodo.2016.02.008
766
1. 2.
3.
4.
What is the best way to handle the phase 1 and phase 2 fee structures? At the conclusion of phase 1, I see the patient periodically for retention checks and observations of his continuing dentofacial and occlusal development. Do these types of visits establish a phase 2 treatment responsibility or liability? How should I handle a preteen patient with a retrognathic mandible who seeks a second opinion from an orthodontist educated in the 1970s, when functional appliances were all the rage? He wondered aloud to the patient's mother why I hadn't tried to grow the mandible. I was taught that it was too late. Even though the literature doesn't support the fact that mandibular lengthening occurs with orthopedic treatment, there are still huge numbers of practitioners who think that we as orthodontists can grow mandibles. I feel as though the patient has me against the ropes, and all I can do is report what I know from the literature and why I did phase 1 treatment the way I did it. But the patient's mother thinks that my treatment was wrong and wants her money back. Should I have dismissed the patient in early treatment, when things weren't working out? What is the best way in a phase 1 to phase 2 scenario to handle the general dentist or the secondopinion orthodontist who makes it seem to the patient that what I did was wrong and that what he or she would have done or recommended would have been more successful? Thanks, M. K.
The first thing that I am not going to do is address question number 1: how phases 1 and 2 fee structures should be set up. This is practice management pure and simple, and outside the realm of this column. But I can't resist saying something about a topic this juicy. The fees we charge are part of what absolutely needs to be discussed during the informed consent discussion. It may indeed be a primary material consideration on which a patient accepts or rejects a contemplated course of therapy. Not only must they know how much phase 1 will cost, but also they must know what phase 2 will cost, and you can't get away with saying “well, we'll see what's involved at that time.” They have to know about
Litigation and legislation
any other charges you will invoke that might be associated with treatment. They have to know the difference in cost between 2 phases of treatment vs waiting to have 1 definitive phase of comprehensive treatment. They have to know this because orthodontics isn't cheap. They have to know because they may have insurance for only 1 round of treatment; if they use the benefits for phase 1, they may have to pay for the more expensive phase 2 treatment out of pocket. Whether you apply a discount, give partial credit, or whatever, is purely a financial and internal marketing decision. Ask 10 orthodontists, and you'll get 10 different answers. Question 2, on the other hand, is about several risk management concerns. After phase 1 is complete, do the retention and observation visits establish any liability regarding phase 2 treatment? Ideally, the answer is no. Phase 1 treatment carries with it the duty to acquire adequate records with which one can construct a differential diagnosis and a treatment plan outlining definitive objectives or goals associated with early treatment intervention. At the conclusion of phase 1, there may or may not be a need for phase 2 (there almost always is, but that's another issue). If there is a phase 2, this phase of treatment carries with it its own set of clinical objectives, temporal considerations, fees, patient responsibilities, and so on, none of which has been accepted by the patient at the conclusion of phase 1. If you had a great result from phase 1 and all that is left in phase 2 is to accomplish some minor tooth movement, the parent might refuse the second phase based on costbenefit considerations. If this happens, obviously there is no phase 2 responsibility or liability as posited by our reader. Question 3 deals mostly with normative ethics but does entertain some risk management considerations. We always talk about being a lifelong student. This concept embodies our responsibility as practitioners to seek and use contemporary evidence as it affects practicing our specialty. This in turn is part and parcel of constructing a standard of care that is temporally related to when the treatment was rendered and the standard of care at that time. An easy example might be the need in any given patient for maxillary dental distalization. Suppose one used headgear to effect this response and, because of the fortuitous nature of life, a significant negative sequela occurs. Now suppose that treatment occurred around the time that headgear was routinely used to effectuate such movement. Suppose again that the lawsuit finally comes to trial many years later, and an expert witness opines that the standard of care is to use temporary skeletal anchorage devices to distalize the teeth. But back when treatment was being rendered, temporary skeletal anchorage devices were new and not
767
used by mainstream practitioners as they are today. My point is that the standard of care has much to do with what we learned and when we learned it. Relying on evidence promulgated nearly half a century ago may be appropriate in some circumstances and quite inappropriate in others. It behooves all of us to keep abreast of the current literature in some form or fashion; as our knowledge base changes, our perceptions and our interpretations of evidence change; therefore, our approaches to treatment must change. As a third-generation orthodontist, I was taught that the only things an orthodontist can grow are plants, trees, and crops. This doesn't mean that we can't influence direction, it doesn't mean we can't remove occlusal interferences and obtain some mandibular repositioning, it doesn't mean we can't get dentoalveolar changes; but growing additional basal bone is a horse of a different color. However, we still must deal with the irate parent who is dissatisfied and has been influenced by another practitioner, and this is as much risk management as it is practice management. You performed an agreed-upon treatment to effectuate certain hoped-for changes and for which you were fairly compensated. If a patient is dissatisfied, you are now faced with a conundrum that all of us face at one time or another. You can tell the patient to kiss off, in which case you probably would subsequently receive a letter from an attorney saying that he or she represents the patient and unless blah, blah, blah happens, he or she will have no choice but to consider all available legal options. On the other hand, you can try to make nice-nice, explaining to the patient that you believe your diagnosis was correct, your treatment conformed to contemporary orthodontic standards of care, you are sorry that he is unhappy, and you are offering “x, y, and z” as a compromise. Keep in mind that you never provide a refund, partial or full, without obtaining a release (which is probably not binding on the minor himself), and whatever good will existed in the doctorpatient relationship is now gone. Our reader questioned whether he should have dismissed the patient earlier because things were not working out. “Things not working out” is not a legally recognized basis for terminating the doctor-patient relationship. The accepted legal bases for doing so are that the patient (1) is not following instructions and thus is interfering or acting detrimentally regarding his or her treatment; (2) is inappropriately trying to dictate treatment that is either not indicated or against your advice; (3) is not keeping appointments, again exhibiting behavior that is against his or her best interests; (4) is not paying for services rendered; (5) is not being truthful in responding to appropriate clinical or
American Journal of Orthodontics and Dentofacial Orthopedics
May 2016 Vol 149 Issue 5
Litigation and legislation
768
administrative inquiries; and (6) is not conforming to accepted modes of behavior. Our reader may have considered terminating the doctor-patient relationship because of excessive and repeated lost or broken appliances, but that is a judgment call best made prospectively or contemporaneously but certainly not retrospectively. Our reader's final question, while based on ethical principles concerning inappropriate criticism, also carries with it some tangential risk management considerations. You certainly don't want to be in a situation where what you say while rendering a second opinion is perceived to be slanderous by the first practitioner. When you are called upon to render a second opinion that is contrary to what the first doctor said—or worse, when a patient returns to you after seeking a second opinion and reports to you what that doctor said about you, your treatment, and your competency—don't stoop to the level of the offending speaker. I was taught a long time ago that a wise man should never argue with a fool because a person listening to the conversation won't know which one is talking. All you need to say is (1) this is what the literature tells us, (2) this is what my experience is, (3) this is what I propose that we do, (4) this is what it will cost, and (5) this is how long it will take. When the patient responds with “why did the other guy say yada, yada, yada,” or “why is he advocating blah, blah, blah,” your response is (1) this is what the literature tells us, (2) this is what my experience is, (3) this is what I propose that we do, (4) this is what it will cost, and (5) this is how long it will take. This mantra is to be repeated as often as necessary in a clear, calm, and convincing tone. Be a professional—take the high road. COMMENTARY
Our reader also asked about terminating the doctorpatient relationship in these phase 1 to phase 2 cases and wondered where the financial obligations regarding treatment began and ended. The simple answer is that there are no interim financial obligations unless one charges for routine recall or retention visits. There was a fee for phase 1, and that fee should have been agreed upon and paid before or contemporaneous with the completion of that phase of treatment. There is a separate fee arrangement for phase 2. Adjusting the fee for phase 2 because the patient underwent phase 1 therapy is not a risk management consideration other than knowing that the higher the fee, the higher the expectation on the part of the patient and the more apt he or she is to be disappointed when those expectations are not met.
May 2016 Vol 149 Issue 5
The next thing that struck me was that phase 1 lasted between the ages of 9 and 12.5 years. Nothing for nothing, but phase 1 therapy should not last 3½ years—no way, no how, except in the rarest of cases. Phase 1 therapy should have either very specific and limited treatment goals or a limited period of time within which the practitioner can ascertain the effectiveness of any therapy rendered. Three and a half years with a 6month hiatus and then progression to phase 2 is not 2 phases of therapy; it is 1 extremely, protractedly longdrawn-out phase of comprehensive therapy. The literature is becoming more and more strongly against 2 phases of treatment. Unfortunately, 2 phases of treatment is a big moneymaker. It is also a good way to prevent the patient from going down the block to someone else. Usually if you start them, you've got them. Although 2 phases of treatment render fabulous results in some patients and are almost unanimously indicated for certain clinical conditions, for the most part they fall under the umbrella of “just because something can be done, it doesn't mean that it should be done.” Merely because something is white doesn't mean that it deserves silver. We need, we really need, definitive research indicating what conditions will benefit from early treatment and to what extent those benefits could not be achieved if they had been treated in 1 comprehensive phase of therapy later on. Not only do we need to let our members know of these research findings when they come out, but also, if we are an ethical specialty, we should let the public know as well. This entire issue has been promulgated by our practice management gurus, and yes, many of them are supported in one way or another by vendors. Way back when, when there was a perceived busyness problem, we were told to market adult therapy. Sometime later, during another perceived busyness problem, we were advised to pursue early treatment as a solution. My guess is that pretty soon we will be told to advocate for the benefits of retreatment as a solution to our lack of busyness concerns. Oh, we may have shot ourselves in the foot on that one, since we have already advocated for lifetime retention. Oh, well. Yes, I know, we are a competitive lot and want our practices to grow and prosper, particularly as we compete with corporate dentistry. I'm not saying that I have all the answers—well, I do, but I'm not saying them (only kidding). I am saying that at some point we must start balancing the ethics inherent in why we do what we do and how we do it, against the actual needs of our patients. We must learn to disregard the needs of our pocketbooks. We must stand up for the right thing, or we will fall for anything. If that happens, we can kiss it all goodbye.
American Journal of Orthodontics and Dentofacial Orthopedics
It's just a phase Laurance Jerrold Brooklyn, NY
A
reader wrote me the following.
Larry, do you have any insight into the gray area dealing with the transition from phase 1 (early treatment) to phase 2 (secondary treatment)? Doesn't the nature of early treatment create an “open endedness” to the doctor-patient relationship? The waters get muddied because most practices I'm aware of either have phase 1 and phase 2 fees, or give some type of credit for what was paid during phase 1 to be applied to the phase 2 fee. This being the case, if you want to terminate the doctor-patient relationship in these phase 1 to phase 2 cases, I wonder where the financial obligations regarding treatment begin and end? Take for instance a 13-year-old boy I treated in phase 1, from ages 9 to 12.5 years, with an expander, maxillary 2-2 brackets, maxillary retainer, and lower lip bumper. The child had mandibular retrognathia, and during treatment his lower jaw did not grow very much (the parent had been informed that the success of early treatment depended on how well the mandible responded). The other day, the patient's mother came into the office with a full head of steam because her general dentist was telling her that the phase 1 treatment was a waste and that the kid still has an overbite (naturally, the general dentist did not call to get my side of the story). Reviewing the kid's chart, there were multiple instances of broken and lost appliances, so this has not been a good relationship from the beginning. I politely told her that she is free to seek another opinion and that phase 1 treatment was never intended to alleviate secondary treatment. She then started in with the money issue. If she goes elsewhere, she will have to pay a full treatment fee, so she'd like to have her money back for the phase 1 treatment. Long story short, the questions below concern the practitioner's legal, fiduciary, and ethical duties regarding the phase 1 to phase 2 treatment interface as well as any related clinical comments.
Program director, Orthodontics and Dentofacial Orthopedics, NYU-Lutheran Medical Center, Department of Dental Medicine, Brooklyn, NY. Am J Orthod Dentofacial Orthop 2016;149:766-8 0889-5406/$36.00 Copyright Ó 2016 by the American Association of Orthodontists. http://dx.doi.org/10.1016/j.ajodo.2016.02.008
766
1. 2.
3.
4.
What is the best way to handle the phase 1 and phase 2 fee structures? At the conclusion of phase 1, I see the patient periodically for retention checks and observations of his continuing dentofacial and occlusal development. Do these types of visits establish a phase 2 treatment responsibility or liability? How should I handle a preteen patient with a retrognathic mandible who seeks a second opinion from an orthodontist educated in the 1970s, when functional appliances were all the rage? He wondered aloud to the patient's mother why I hadn't tried to grow the mandible. I was taught that it was too late. Even though the literature doesn't support the fact that mandibular lengthening occurs with orthopedic treatment, there are still huge numbers of practitioners who think that we as orthodontists can grow mandibles. I feel as though the patient has me against the ropes, and all I can do is report what I know from the literature and why I did phase 1 treatment the way I did it. But the patient's mother thinks that my treatment was wrong and wants her money back. Should I have dismissed the patient in early treatment, when things weren't working out? What is the best way in a phase 1 to phase 2 scenario to handle the general dentist or the secondopinion orthodontist who makes it seem to the patient that what I did was wrong and that what he or she would have done or recommended would have been more successful? Thanks, M. K.
The first thing that I am not going to do is address question number 1: how phases 1 and 2 fee structures should be set up. This is practice management pure and simple, and outside the realm of this column. But I can't resist saying something about a topic this juicy. The fees we charge are part of what absolutely needs to be discussed during the informed consent discussion. It may indeed be a primary material consideration on which a patient accepts or rejects a contemplated course of therapy. Not only must they know how much phase 1 will cost, but also they must know what phase 2 will cost, and you can't get away with saying “well, we'll see what's involved at that time.” They have to know about
Litigation and legislation
any other charges you will invoke that might be associated with treatment. They have to know the difference in cost between 2 phases of treatment vs waiting to have 1 definitive phase of comprehensive treatment. They have to know this because orthodontics isn't cheap. They have to know because they may have insurance for only 1 round of treatment; if they use the benefits for phase 1, they may have to pay for the more expensive phase 2 treatment out of pocket. Whether you apply a discount, give partial credit, or whatever, is purely a financial and internal marketing decision. Ask 10 orthodontists, and you'll get 10 different answers. Question 2, on the other hand, is about several risk management concerns. After phase 1 is complete, do the retention and observation visits establish any liability regarding phase 2 treatment? Ideally, the answer is no. Phase 1 treatment carries with it the duty to acquire adequate records with which one can construct a differential diagnosis and a treatment plan outlining definitive objectives or goals associated with early treatment intervention. At the conclusion of phase 1, there may or may not be a need for phase 2 (there almost always is, but that's another issue). If there is a phase 2, this phase of treatment carries with it its own set of clinical objectives, temporal considerations, fees, patient responsibilities, and so on, none of which has been accepted by the patient at the conclusion of phase 1. If you had a great result from phase 1 and all that is left in phase 2 is to accomplish some minor tooth movement, the parent might refuse the second phase based on costbenefit considerations. If this happens, obviously there is no phase 2 responsibility or liability as posited by our reader. Question 3 deals mostly with normative ethics but does entertain some risk management considerations. We always talk about being a lifelong student. This concept embodies our responsibility as practitioners to seek and use contemporary evidence as it affects practicing our specialty. This in turn is part and parcel of constructing a standard of care that is temporally related to when the treatment was rendered and the standard of care at that time. An easy example might be the need in any given patient for maxillary dental distalization. Suppose one used headgear to effect this response and, because of the fortuitous nature of life, a significant negative sequela occurs. Now suppose that treatment occurred around the time that headgear was routinely used to effectuate such movement. Suppose again that the lawsuit finally comes to trial many years later, and an expert witness opines that the standard of care is to use temporary skeletal anchorage devices to distalize the teeth. But back when treatment was being rendered, temporary skeletal anchorage devices were new and not
767
used by mainstream practitioners as they are today. My point is that the standard of care has much to do with what we learned and when we learned it. Relying on evidence promulgated nearly half a century ago may be appropriate in some circumstances and quite inappropriate in others. It behooves all of us to keep abreast of the current literature in some form or fashion; as our knowledge base changes, our perceptions and our interpretations of evidence change; therefore, our approaches to treatment must change. As a third-generation orthodontist, I was taught that the only things an orthodontist can grow are plants, trees, and crops. This doesn't mean that we can't influence direction, it doesn't mean we can't remove occlusal interferences and obtain some mandibular repositioning, it doesn't mean we can't get dentoalveolar changes; but growing additional basal bone is a horse of a different color. However, we still must deal with the irate parent who is dissatisfied and has been influenced by another practitioner, and this is as much risk management as it is practice management. You performed an agreed-upon treatment to effectuate certain hoped-for changes and for which you were fairly compensated. If a patient is dissatisfied, you are now faced with a conundrum that all of us face at one time or another. You can tell the patient to kiss off, in which case you probably would subsequently receive a letter from an attorney saying that he or she represents the patient and unless blah, blah, blah happens, he or she will have no choice but to consider all available legal options. On the other hand, you can try to make nice-nice, explaining to the patient that you believe your diagnosis was correct, your treatment conformed to contemporary orthodontic standards of care, you are sorry that he is unhappy, and you are offering “x, y, and z” as a compromise. Keep in mind that you never provide a refund, partial or full, without obtaining a release (which is probably not binding on the minor himself), and whatever good will existed in the doctorpatient relationship is now gone. Our reader questioned whether he should have dismissed the patient earlier because things were not working out. “Things not working out” is not a legally recognized basis for terminating the doctor-patient relationship. The accepted legal bases for doing so are that the patient (1) is not following instructions and thus is interfering or acting detrimentally regarding his or her treatment; (2) is inappropriately trying to dictate treatment that is either not indicated or against your advice; (3) is not keeping appointments, again exhibiting behavior that is against his or her best interests; (4) is not paying for services rendered; (5) is not being truthful in responding to appropriate clinical or
American Journal of Orthodontics and Dentofacial Orthopedics
May 2016 Vol 149 Issue 5
Litigation and legislation
768
administrative inquiries; and (6) is not conforming to accepted modes of behavior. Our reader may have considered terminating the doctor-patient relationship because of excessive and repeated lost or broken appliances, but that is a judgment call best made prospectively or contemporaneously but certainly not retrospectively. Our reader's final question, while based on ethical principles concerning inappropriate criticism, also carries with it some tangential risk management considerations. You certainly don't want to be in a situation where what you say while rendering a second opinion is perceived to be slanderous by the first practitioner. When you are called upon to render a second opinion that is contrary to what the first doctor said—or worse, when a patient returns to you after seeking a second opinion and reports to you what that doctor said about you, your treatment, and your competency—don't stoop to the level of the offending speaker. I was taught a long time ago that a wise man should never argue with a fool because a person listening to the conversation won't know which one is talking. All you need to say is (1) this is what the literature tells us, (2) this is what my experience is, (3) this is what I propose that we do, (4) this is what it will cost, and (5) this is how long it will take. When the patient responds with “why did the other guy say yada, yada, yada,” or “why is he advocating blah, blah, blah,” your response is (1) this is what the literature tells us, (2) this is what my experience is, (3) this is what I propose that we do, (4) this is what it will cost, and (5) this is how long it will take. This mantra is to be repeated as often as necessary in a clear, calm, and convincing tone. Be a professional—take the high road. COMMENTARY
Our reader also asked about terminating the doctorpatient relationship in these phase 1 to phase 2 cases and wondered where the financial obligations regarding treatment began and ended. The simple answer is that there are no interim financial obligations unless one charges for routine recall or retention visits. There was a fee for phase 1, and that fee should have been agreed upon and paid before or contemporaneous with the completion of that phase of treatment. There is a separate fee arrangement for phase 2. Adjusting the fee for phase 2 because the patient underwent phase 1 therapy is not a risk management consideration other than knowing that the higher the fee, the higher the expectation on the part of the patient and the more apt he or she is to be disappointed when those expectations are not met.
May 2016 Vol 149 Issue 5
The next thing that struck me was that phase 1 lasted between the ages of 9 and 12.5 years. Nothing for nothing, but phase 1 therapy should not last 3½ years—no way, no how, except in the rarest of cases. Phase 1 therapy should have either very specific and limited treatment goals or a limited period of time within which the practitioner can ascertain the effectiveness of any therapy rendered. Three and a half years with a 6month hiatus and then progression to phase 2 is not 2 phases of therapy; it is 1 extremely, protractedly longdrawn-out phase of comprehensive therapy. The literature is becoming more and more strongly against 2 phases of treatment. Unfortunately, 2 phases of treatment is a big moneymaker. It is also a good way to prevent the patient from going down the block to someone else. Usually if you start them, you've got them. Although 2 phases of treatment render fabulous results in some patients and are almost unanimously indicated for certain clinical conditions, for the most part they fall under the umbrella of “just because something can be done, it doesn't mean that it should be done.” Merely because something is white doesn't mean that it deserves silver. We need, we really need, definitive research indicating what conditions will benefit from early treatment and to what extent those benefits could not be achieved if they had been treated in 1 comprehensive phase of therapy later on. Not only do we need to let our members know of these research findings when they come out, but also, if we are an ethical specialty, we should let the public know as well. This entire issue has been promulgated by our practice management gurus, and yes, many of them are supported in one way or another by vendors. Way back when, when there was a perceived busyness problem, we were told to market adult therapy. Sometime later, during another perceived busyness problem, we were advised to pursue early treatment as a solution. My guess is that pretty soon we will be told to advocate for the benefits of retreatment as a solution to our lack of busyness concerns. Oh, we may have shot ourselves in the foot on that one, since we have already advocated for lifetime retention. Oh, well. Yes, I know, we are a competitive lot and want our practices to grow and prosper, particularly as we compete with corporate dentistry. I'm not saying that I have all the answers—well, I do, but I'm not saying them (only kidding). I am saying that at some point we must start balancing the ethics inherent in why we do what we do and how we do it, against the actual needs of our patients. We must learn to disregard the needs of our pocketbooks. We must stand up for the right thing, or we will fall for anything. If that happens, we can kiss it all goodbye.
American Journal of Orthodontics and Dentofacial Orthopedics