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Legislation & Litigation
__________JADA _________
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L E G I S L A T I O N
L I T IG A T I O N New York A p p ellate D ivisio n affirm s a decision of the state’s unemployment insurance appeal board assessing unemployment insur ance contributions against a dentist. For many years the dentist had owned eight dental offices and was the sole shareholder of a professional corporation that operated eight other offices in the New York City area. The offices were fully furnished and equipped. They included a complete support staff, some salaried dentists, and centralized services. All of these personnel were considered to be employees. T h e com missioner of labor conducted an audit of the d en tal offices and determ ined th at several additional dentists who practiced in the offices were also employees. As a result, more than $27,000 were assessed as unem ploym ent in surance contributions due to those additional d en tists for the period from Ja n u a ry 1984 to March 1987. T he unemployment insurance appeal board rejected the owner’s contention th a t these den tists were in d e p e n d e n t c o n tractors rather than employees, and this appeal followed. T he appellate division stated that the issue of whether a relationship is one of employeremployee or independent contractor is a mixed q u e stio n of fact and law for the b o ard to resolve. T h e court also ex p lain ed th a t the board’s findings are conclusive if supported by su b stan tial evidence, even if the record could support a contrary determination. O n the substantive q u estio n of w hether one is an employee or independent contractor, the co u rt stated that the prim ary factor to consider is the degree of control exercised by an em ployer. T h e court co n tin u ed that when dealing with the services of a professional w ith o u t direct em ployer control, the board m ust look to other indicia of less direct but ultim ate control to determine the nature of the relationship. In this case, fully equipped offices and
& L I T I G A T I O N
support staff were provided. T he hiring dentist booked appointm ents, assigned p atients to the d e n tists, estab lish ed the charges, and performed the billing and collections. Occa sionally, dentists treated their own personal p a tie n ts a n d shared the fees charged w ith the hiring dentist. The contract between the hiring dentist and other dentists did provide th a t they were in d e p e n d e n t co n tracto rs. However, the court agreed that despite some factors that could support a different result, the evidence in the record fully supported the b o ard ’s d eterm ination of an em ployeremployee relationship. T he court concluded that having such evidence in the record, its inquiry was complete and the board’s decision was affirmed (In the M a tte r o f ______ , NY A pp Div 3d Dept, No. 59354, decided April 5, 1990). T his case is another example of a govern mental agency looking beyond the contract between a dental practice and the dentists who practice there in determ ining whether the relationship is one between an employer and employees or a hiring party and independent contractors. As this and earlier cases have shown, the contract, in and of itself, will not be controlling. Federal or state taxing author ities can and will look into the actual relation ship and how it functions in fact. As this case explains, the element of control by the h irin g d e n tist o r d en tal office is a key factor. T hat is why the IRS has held that state law re q u irin g su p e rv isio n of d ental auxiliaries makes it im possible for them to be considered in d e p e n d e n t co n tracto rs for federal employment tax purposes. Presumably, the same rule applies for state em ploym ent tax and unem ploym ent insurance purposes. For dentists and other practitioners who can practice without supervision, this court stated that a different rule applies. In those cases, the agency or court will try to determine who furnishes the office equipm ent and supplies, pro v id es the office staff, assig n s p a tie n ts, schedules a p p o in tm e n ts, estab lish es the charges, bills the patients, and is responsible for collections. These cases indicate th at if the p ractice or the h irin g d en tist controls these key factors, the tre a tin g d e n tist w ill be considered an employee for tax purposes and the courts will sustain that determination.
Pennsylvania Superior Court affirms a ju d g m en t of sentence im p o sin g a fine of $250 on each of ten counts for violations of the State Dental Practice Law. T h e dentist was arrested an d ch arg ed w ith ten co u n ts of em ploying a dental hygienist w ho was not licensed. After a ju ry trial, the dentist was found guilty on all ten counts. This appeal was taken by the dentist arguing that the
verdict was contrary to the law and u n su p ported by the evidence. T h e c o u rt e x p la in e d th a t the test of sufficiency of evidence is w hether the jury could have found th a t each elem ent of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt. In c o n d u ctin g this type of review, the appellate court reviews all evidence adm itted at trial, together with all reasonable inferences from the evidence, in the light most favorable to the state. In this case, the dentist was convicted under a statute that provided it is unlaw ful for a person practicing dentistry to employ a person as a dental h ygienist unless th a t person is licensed as a d e n ta l h y g ien ist as req u ired by Pennsylvania law and board rules. T he c o u rt ex p la in e d th a t for a co n v ictio n , the state m ust prove that the person practicing d en tistry em ployed th e u n lice n se d person as a dental hygienist. In this case, the defendant was a dentist an d the den tal au x iliary was n o t a licensed dental hygienist. T h e court, therefore, concluded that all it had to consider was w hether the evidence was sufficient to find that the dentist had employed the dental auxiliary as a dental hygienist. The dentist had hired the dental auxiliary to be his dental assistant. D uring the course of her em p lo y m en t an d w ith the d e n tis t’s k now ledge, she used a C a v itro n to clean patients’ teeth, used a prophy cup to polish patients’ teeth after rem oving stains and tartar, and applied fluoride to children’s teeth. These procedures were reserved to licensed dental hygienists under the dental practice law and board rules, and the dentist did not dispute th a t fact. In stead , u sin g w h a t th e co u rt described as a strain ed an d hypertechnical construction of the word “em ploy,” the dentist tried to convince the court that he could not be convicted because he in itia lly hired her as a dental assistant, not as a dental hygienist. He argued th a t the fact th a t after she was h ire d as a d e n tal a ss ista n t she p erfo rm ed p rocedures reserved for a d en tal h y g ien ist did not alter her job description or the nature of her employment. Because the word “em ploy” was not defined in the statu te, the c o u rt ex p la in e d th a t it w ould be given its com m on an d approved usage in the dictionary. T h e dictionary defined “ em p lo y ” to m ean “ to m ake use o f,” “ to occupy (as tim e) ad v an ta g eo u sly ” and “ to use or engage the services o f.” T h e c o u rt h e ld th a t the d e n tist h a d m ade use of or en gaged an u n lic e n sed p e rso n w ho then performed services reserved for licensed dental hygienists. Because the d e n tist had “ used” the dental assistant to perform dental hygiene procedures, the court held that the evidence was sufficient to support the ju ry ’s verdict.
JADA, Vol. 121, July 1990 ■ 207
LEGISLATION & LITIGATION
The dentist also challenged the trial court’s instructions to the jury concerning the word “em ploy.” He argued that the word as used in the statute could not be read expansively but must be defined narrowly to mean employ in the sense of “ h ire.” T he trial court had in stru cted the ju ry th at a d e n tist em ploys a person as a dental hygienist when he uses that person regardless of the person’s particular job title or other work assignments to perform the services th a t only a person licensed as a dental hygienist is perm itted to perform. T h e ap p ellate co u rt found th at the charge to the jury was an adequate and fair summary of the com m on and approved usage of the word “ em ploy.” It adequately conveyed to (he jury the proper legal principles governing violations of the statute and was sufficient to guide the jury properly in its deliberations. T he court, therefore, affirmed the judgm ent of sentence against the dentist (C o m m o n w e a lth vs ______, Pa Siaper No. 00174 HSBG 1989, decided April 10, 1990). F lo r id a
D i s t r i c t C o u r t o f A p p e a l a f f ir m s
d is m is s a l o f a p a t ie n t ’s c o m p la in t for fa ilu r e to c o m p ly w ith p r e s u it d isc o v er y p r o c ed u r es.
In A u g u st 1986, the p a tie n t served the defendant dentists w ith notice of her intent to initiate litigation for negligent dental care. About 2 months later, the dentists’ insurance carrier wrote to the patient’s lawyer, acknowl edge receipt of the notice, and requested that he fu rn ish copies of any and all m aterials supporting the patient’s claim. None of the req u ested in fo rm a tio n was provided. T h e follow ing January, the insurance carrier again wrote the patient’s lawyer and advised if the requested information was not received w ithin 30 days, the claim file w ould be closed. It was also n oted th at her d en tal charts had been provided to them. Approximately 15 months later, the patient wrote to the insurance carrier and enclosed the chart of her most recent treating dentist, several dental bills from other dentists, and radiographs. Later in 1988, the patient filed a co m p lain t against the defendant dentists alleging that she discovered dental malpractice in February 1986. The dentists filed motions to dism iss on the g ro u n d th a t the p a tie n t had failed to provide discovery pursuant to Florida statutes. At a hearing on the motion to dism iss, w hen asked w hat was done in response to the request for inform ation, the p a tie n t’s lawyer replied, “ I d id n ’t do an y thing. . . . ” T he trial court granted the motion and dismissed the com plaint. A m otion for rehearing was denied and this appeal followed.
208 ■ JADA, Vol. 121, July 1990
T h e court cited ap p licab le provisions of Florida’s Comprehensive Medical Malpractice Reform Act of 1985, which provides: N o suit may be filed for a period of 90 days after notice is m ailed to the prospective defendant. . . . D uring the 90-day period, the prospective defendant’s insurer . . . sh a ll con d u ct a review to determ ine the liability of the defendant. U p o n receipt by a p r o sp e ctiv e defen d an t o f a notice of claim , the parties shall make discoverable in fo rm a tio n a vailab le w ith o u t form al discovery. Failure to do so is grounds for dismissal of claims or defenses ultim ately asserted.
• The court of appeal explained that its review was limited to whether the trial court abused its d iscretion in dism issin g the c o m p la in t for the patient’s complete failure to comply with presuit discovery procedures. T he court found that in light of these provisions, there was no such abuse by the trial court and to hold otherwise would emasculate the dismissal sanction. Therefore, the court affirm ed the dismissal (B a rtle y v ________ , Fla App 4 Dist, Nos. 88-3372, 89-0348, decided April 11, 1990). F lo r id a D is tr ic t C o u r t o f A p p e a l a ffir m s d is m is s a l o f a n e g lig e n c e a c t io n fo r fa ilu r e to p r o v id e n o t ic e o f in t e n t to in itia te lit ig a tio n , w h e n th e p la i n t if f ’s la w y e r n o t ifie d th e w r o n g
In September 1987, the lawyer m is takenly sent the notice regarding initiatio n of a professional negligence a ctio n to the d e n tist-b ro th e r of the tre a tin g d en tist. A lthough the plaintiffs adm it the mistake, they contend that notice was adequate under the circumstances. At the time the notice was sent, both brothers were practicing dentistry at the same dental office and their insurance carrier acknowledged that it had been notified of the intention to initiate litigation against the wrong brother. The court of appeal explained that the notice statu te required notice to each prospective defendant by certified mail. It did not allow for constructive notice, oral notice, notice by p u b licatio n , or notice by reg u lar m ail. Because the notice requirem ent of the statute was jurisdictional, failure to provide adequate n o tice resulted in d ism issal. B ecause no certificate was ever supplied to the appropriate brother, the court concluded th at the final order of dismissal must be affirmed (In g e r s o ll v ________ , Fla App 3 Dist No. 89-997, decided April 10, 1990). d e n t is t .
A D A ’s m e m b e r s h ip d u e s e q u it y p la n r a ise s q u e s tio n s a b o u t c h a n g e s to th e lif e m e m b e r
L ast year the ADA’s H o u se of Delegates adopted R eso lu tio n 28H-1989 to implement Board Report 4 concerning mem bership dues equity. One of the changes the House made involves current and future life m em bers w ho are n o t yet retired. D entists m eeting the age and years of m em bership requirem ents for life m em bership, b u t still e a rn in g incom e from d en tistry , w ill be
c a te g o ry .
classified as active life m em bers beginning January 1, 1991. Because they are practicing and directly benefiting from ADA programs and activities, active life members will pay one-half of full dues to help the Association m aintain sufficient financial strength to deliver these services. As Board Report 4 explains, there are nearly 23,000 life members and approximately 2,000 members who will achieve life m em bership status each year. As w ith the a g in g of the p o p u la tio n generally, the nu m ber of ADA m em bers re a c h in g life m em b ersh ip w ill increase d u rin g this decade. W ith declining e n ro llm e n ts in d en tal sch o o l and low er m em bership entry by younger dentists, life members will become an increasing percentage of the to ta l m em b ersh ip . U nless the life members who are active help defray the cost of the services they use, the dues burden will fall increasingly on the sh rin k in g pool of active members. With the adoption of Resolution 28H-1989, questions have arisen a b o u t the legality of changing the life membership category. The Board of Trustees requested a legal opinion on this matter before m aking its recommen dation to the House of Delegates. It was the opinion of the Association's Division of Legal A ffairs th a t the ch an g e is v alid. It was explained that as a general rule, the bylaws of an o rg a n iz a tio n are in the n atu re of a c o n tra c t betw een th e a sso c ia tio n an d its m em bers. L ik e o th e r o rg a n iz a tio n s, the p urpose of the ADA B y la w s is to regulate the affairs, structure, an d operations of the Association. When a dentist joins the ADA, she or he agrees by that affiliation to abide by the Association’s B yla w s. T h e life m em bership provisions stand on the same footing as all other bylaw provisions. They may be amended, modified, and even repealed by the action of the House of Delegates in accordance w ith C hapter XIX. In other words, that “contract” between the Association and its members (that is, the B y la w s) by its ow n term s says it may be ch anged by the House of Delegates. T h e on ly ex ce p tio n to th is ru le is the situ a tio n in w hich an association actually sells life m em berships to its members. For exam ple, the m em ber w ho a tta in s the age of 65 and has m ain tain ed m em bership for 40 years could be p erm itted to purchase a life m em b ersh ip for a ce rta in am o u n t of money. In this example, there is a separate c ontract between the o rg an izatio n and the purchasers that cannot be changed by amend ing the bylaws. However, th at is currently n o t the case w ith the ADA. S ee B u s b e y v C h ic a g o A th le tic A ss o c ia tio n , 228 NE 2d 262 (111 App 1967).
T h is report was prepared by Mr. Richard Berry, a sso c ia te gen eral c o u n s e l, A m erican D ental Association.
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L E G I S L A T I O N
L I T IG A T I O N New York A p p ellate D ivisio n affirm s a decision of the state’s unemployment insurance appeal board assessing unemployment insur ance contributions against a dentist. For many years the dentist had owned eight dental offices and was the sole shareholder of a professional corporation that operated eight other offices in the New York City area. The offices were fully furnished and equipped. They included a complete support staff, some salaried dentists, and centralized services. All of these personnel were considered to be employees. T h e com missioner of labor conducted an audit of the d en tal offices and determ ined th at several additional dentists who practiced in the offices were also employees. As a result, more than $27,000 were assessed as unem ploym ent in surance contributions due to those additional d en tists for the period from Ja n u a ry 1984 to March 1987. T he unemployment insurance appeal board rejected the owner’s contention th a t these den tists were in d e p e n d e n t c o n tractors rather than employees, and this appeal followed. T he appellate division stated that the issue of whether a relationship is one of employeremployee or independent contractor is a mixed q u e stio n of fact and law for the b o ard to resolve. T h e court also ex p lain ed th a t the board’s findings are conclusive if supported by su b stan tial evidence, even if the record could support a contrary determination. O n the substantive q u estio n of w hether one is an employee or independent contractor, the co u rt stated that the prim ary factor to consider is the degree of control exercised by an em ployer. T h e court co n tin u ed that when dealing with the services of a professional w ith o u t direct em ployer control, the board m ust look to other indicia of less direct but ultim ate control to determine the nature of the relationship. In this case, fully equipped offices and
& L I T I G A T I O N
support staff were provided. T he hiring dentist booked appointm ents, assigned p atients to the d e n tists, estab lish ed the charges, and performed the billing and collections. Occa sionally, dentists treated their own personal p a tie n ts a n d shared the fees charged w ith the hiring dentist. The contract between the hiring dentist and other dentists did provide th a t they were in d e p e n d e n t co n tracto rs. However, the court agreed that despite some factors that could support a different result, the evidence in the record fully supported the b o ard ’s d eterm ination of an em ployeremployee relationship. T he court concluded that having such evidence in the record, its inquiry was complete and the board’s decision was affirmed (In the M a tte r o f ______ , NY A pp Div 3d Dept, No. 59354, decided April 5, 1990). T his case is another example of a govern mental agency looking beyond the contract between a dental practice and the dentists who practice there in determ ining whether the relationship is one between an employer and employees or a hiring party and independent contractors. As this and earlier cases have shown, the contract, in and of itself, will not be controlling. Federal or state taxing author ities can and will look into the actual relation ship and how it functions in fact. As this case explains, the element of control by the h irin g d e n tist o r d en tal office is a key factor. T hat is why the IRS has held that state law re q u irin g su p e rv isio n of d ental auxiliaries makes it im possible for them to be considered in d e p e n d e n t co n tracto rs for federal employment tax purposes. Presumably, the same rule applies for state em ploym ent tax and unem ploym ent insurance purposes. For dentists and other practitioners who can practice without supervision, this court stated that a different rule applies. In those cases, the agency or court will try to determine who furnishes the office equipm ent and supplies, pro v id es the office staff, assig n s p a tie n ts, schedules a p p o in tm e n ts, estab lish es the charges, bills the patients, and is responsible for collections. These cases indicate th at if the p ractice or the h irin g d en tist controls these key factors, the tre a tin g d e n tist w ill be considered an employee for tax purposes and the courts will sustain that determination.
Pennsylvania Superior Court affirms a ju d g m en t of sentence im p o sin g a fine of $250 on each of ten counts for violations of the State Dental Practice Law. T h e dentist was arrested an d ch arg ed w ith ten co u n ts of em ploying a dental hygienist w ho was not licensed. After a ju ry trial, the dentist was found guilty on all ten counts. This appeal was taken by the dentist arguing that the
verdict was contrary to the law and u n su p ported by the evidence. T h e c o u rt e x p la in e d th a t the test of sufficiency of evidence is w hether the jury could have found th a t each elem ent of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt. In c o n d u ctin g this type of review, the appellate court reviews all evidence adm itted at trial, together with all reasonable inferences from the evidence, in the light most favorable to the state. In this case, the dentist was convicted under a statute that provided it is unlaw ful for a person practicing dentistry to employ a person as a dental h ygienist unless th a t person is licensed as a d e n ta l h y g ien ist as req u ired by Pennsylvania law and board rules. T he c o u rt ex p la in e d th a t for a co n v ictio n , the state m ust prove that the person practicing d en tistry em ployed th e u n lice n se d person as a dental hygienist. In this case, the defendant was a dentist an d the den tal au x iliary was n o t a licensed dental hygienist. T h e court, therefore, concluded that all it had to consider was w hether the evidence was sufficient to find that the dentist had employed the dental auxiliary as a dental hygienist. The dentist had hired the dental auxiliary to be his dental assistant. D uring the course of her em p lo y m en t an d w ith the d e n tis t’s k now ledge, she used a C a v itro n to clean patients’ teeth, used a prophy cup to polish patients’ teeth after rem oving stains and tartar, and applied fluoride to children’s teeth. These procedures were reserved to licensed dental hygienists under the dental practice law and board rules, and the dentist did not dispute th a t fact. In stead , u sin g w h a t th e co u rt described as a strain ed an d hypertechnical construction of the word “em ploy,” the dentist tried to convince the court that he could not be convicted because he in itia lly hired her as a dental assistant, not as a dental hygienist. He argued th a t the fact th a t after she was h ire d as a d e n tal a ss ista n t she p erfo rm ed p rocedures reserved for a d en tal h y g ien ist did not alter her job description or the nature of her employment. Because the word “em ploy” was not defined in the statu te, the c o u rt ex p la in e d th a t it w ould be given its com m on an d approved usage in the dictionary. T h e dictionary defined “ em p lo y ” to m ean “ to m ake use o f,” “ to occupy (as tim e) ad v an ta g eo u sly ” and “ to use or engage the services o f.” T h e c o u rt h e ld th a t the d e n tist h a d m ade use of or en gaged an u n lic e n sed p e rso n w ho then performed services reserved for licensed dental hygienists. Because the d e n tist had “ used” the dental assistant to perform dental hygiene procedures, the court held that the evidence was sufficient to support the ju ry ’s verdict.
JADA, Vol. 121, July 1990 ■ 207
LEGISLATION & LITIGATION
The dentist also challenged the trial court’s instructions to the jury concerning the word “em ploy.” He argued that the word as used in the statute could not be read expansively but must be defined narrowly to mean employ in the sense of “ h ire.” T he trial court had in stru cted the ju ry th at a d e n tist em ploys a person as a dental hygienist when he uses that person regardless of the person’s particular job title or other work assignments to perform the services th a t only a person licensed as a dental hygienist is perm itted to perform. T h e ap p ellate co u rt found th at the charge to the jury was an adequate and fair summary of the com m on and approved usage of the word “ em ploy.” It adequately conveyed to (he jury the proper legal principles governing violations of the statute and was sufficient to guide the jury properly in its deliberations. T he court, therefore, affirmed the judgm ent of sentence against the dentist (C o m m o n w e a lth vs ______, Pa Siaper No. 00174 HSBG 1989, decided April 10, 1990). F lo r id a
D i s t r i c t C o u r t o f A p p e a l a f f ir m s
d is m is s a l o f a p a t ie n t ’s c o m p la in t for fa ilu r e to c o m p ly w ith p r e s u it d isc o v er y p r o c ed u r es.
In A u g u st 1986, the p a tie n t served the defendant dentists w ith notice of her intent to initiate litigation for negligent dental care. About 2 months later, the dentists’ insurance carrier wrote to the patient’s lawyer, acknowl edge receipt of the notice, and requested that he fu rn ish copies of any and all m aterials supporting the patient’s claim. None of the req u ested in fo rm a tio n was provided. T h e follow ing January, the insurance carrier again wrote the patient’s lawyer and advised if the requested information was not received w ithin 30 days, the claim file w ould be closed. It was also n oted th at her d en tal charts had been provided to them. Approximately 15 months later, the patient wrote to the insurance carrier and enclosed the chart of her most recent treating dentist, several dental bills from other dentists, and radiographs. Later in 1988, the patient filed a co m p lain t against the defendant dentists alleging that she discovered dental malpractice in February 1986. The dentists filed motions to dism iss on the g ro u n d th a t the p a tie n t had failed to provide discovery pursuant to Florida statutes. At a hearing on the motion to dism iss, w hen asked w hat was done in response to the request for inform ation, the p a tie n t’s lawyer replied, “ I d id n ’t do an y thing. . . . ” T he trial court granted the motion and dismissed the com plaint. A m otion for rehearing was denied and this appeal followed.
208 ■ JADA, Vol. 121, July 1990
T h e court cited ap p licab le provisions of Florida’s Comprehensive Medical Malpractice Reform Act of 1985, which provides: N o suit may be filed for a period of 90 days after notice is m ailed to the prospective defendant. . . . D uring the 90-day period, the prospective defendant’s insurer . . . sh a ll con d u ct a review to determ ine the liability of the defendant. U p o n receipt by a p r o sp e ctiv e defen d an t o f a notice of claim , the parties shall make discoverable in fo rm a tio n a vailab le w ith o u t form al discovery. Failure to do so is grounds for dismissal of claims or defenses ultim ately asserted.
• The court of appeal explained that its review was limited to whether the trial court abused its d iscretion in dism issin g the c o m p la in t for the patient’s complete failure to comply with presuit discovery procedures. T he court found that in light of these provisions, there was no such abuse by the trial court and to hold otherwise would emasculate the dismissal sanction. Therefore, the court affirm ed the dismissal (B a rtle y v ________ , Fla App 4 Dist, Nos. 88-3372, 89-0348, decided April 11, 1990). F lo r id a D is tr ic t C o u r t o f A p p e a l a ffir m s d is m is s a l o f a n e g lig e n c e a c t io n fo r fa ilu r e to p r o v id e n o t ic e o f in t e n t to in itia te lit ig a tio n , w h e n th e p la i n t if f ’s la w y e r n o t ifie d th e w r o n g
In September 1987, the lawyer m is takenly sent the notice regarding initiatio n of a professional negligence a ctio n to the d e n tist-b ro th e r of the tre a tin g d en tist. A lthough the plaintiffs adm it the mistake, they contend that notice was adequate under the circumstances. At the time the notice was sent, both brothers were practicing dentistry at the same dental office and their insurance carrier acknowledged that it had been notified of the intention to initiate litigation against the wrong brother. The court of appeal explained that the notice statu te required notice to each prospective defendant by certified mail. It did not allow for constructive notice, oral notice, notice by p u b licatio n , or notice by reg u lar m ail. Because the notice requirem ent of the statute was jurisdictional, failure to provide adequate n o tice resulted in d ism issal. B ecause no certificate was ever supplied to the appropriate brother, the court concluded th at the final order of dismissal must be affirmed (In g e r s o ll v ________ , Fla App 3 Dist No. 89-997, decided April 10, 1990). d e n t is t .
A D A ’s m e m b e r s h ip d u e s e q u it y p la n r a ise s q u e s tio n s a b o u t c h a n g e s to th e lif e m e m b e r
L ast year the ADA’s H o u se of Delegates adopted R eso lu tio n 28H-1989 to implement Board Report 4 concerning mem bership dues equity. One of the changes the House made involves current and future life m em bers w ho are n o t yet retired. D entists m eeting the age and years of m em bership requirem ents for life m em bership, b u t still e a rn in g incom e from d en tistry , w ill be
c a te g o ry .
classified as active life m em bers beginning January 1, 1991. Because they are practicing and directly benefiting from ADA programs and activities, active life members will pay one-half of full dues to help the Association m aintain sufficient financial strength to deliver these services. As Board Report 4 explains, there are nearly 23,000 life members and approximately 2,000 members who will achieve life m em bership status each year. As w ith the a g in g of the p o p u la tio n generally, the nu m ber of ADA m em bers re a c h in g life m em b ersh ip w ill increase d u rin g this decade. W ith declining e n ro llm e n ts in d en tal sch o o l and low er m em bership entry by younger dentists, life members will become an increasing percentage of the to ta l m em b ersh ip . U nless the life members who are active help defray the cost of the services they use, the dues burden will fall increasingly on the sh rin k in g pool of active members. With the adoption of Resolution 28H-1989, questions have arisen a b o u t the legality of changing the life membership category. The Board of Trustees requested a legal opinion on this matter before m aking its recommen dation to the House of Delegates. It was the opinion of the Association's Division of Legal A ffairs th a t the ch an g e is v alid. It was explained that as a general rule, the bylaws of an o rg a n iz a tio n are in the n atu re of a c o n tra c t betw een th e a sso c ia tio n an d its m em bers. L ik e o th e r o rg a n iz a tio n s, the p urpose of the ADA B y la w s is to regulate the affairs, structure, an d operations of the Association. When a dentist joins the ADA, she or he agrees by that affiliation to abide by the Association’s B yla w s. T h e life m em bership provisions stand on the same footing as all other bylaw provisions. They may be amended, modified, and even repealed by the action of the House of Delegates in accordance w ith C hapter XIX. In other words, that “contract” between the Association and its members (that is, the B y la w s) by its ow n term s says it may be ch anged by the House of Delegates. T h e on ly ex ce p tio n to th is ru le is the situ a tio n in w hich an association actually sells life m em berships to its members. For exam ple, the m em ber w ho a tta in s the age of 65 and has m ain tain ed m em bership for 40 years could be p erm itted to purchase a life m em b ersh ip for a ce rta in am o u n t of money. In this example, there is a separate c ontract between the o rg an izatio n and the purchasers that cannot be changed by amend ing the bylaws. However, th at is currently n o t the case w ith the ADA. S ee B u s b e y v C h ic a g o A th le tic A ss o c ia tio n , 228 NE 2d 262 (111 App 1967).
T h is report was prepared by Mr. Richard Berry, a sso c ia te gen eral c o u n s e l, A m erican D ental Association.