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Who is entitled to what?
LITIGATION AND LEGISLATION
Who is entitled to what? Laurance Jerrold Brooklyn, NY
A
reader wrote to me recently, describing a situation and asking for guidance. The situation is common enough to warrant discussion. It went something like this. Larry: I’m a recent graduate, now employed at a multigroup specialty practice. The other day, an attorney called and wanted to know if we saw new patients for second opinions and what the process was. We said we did and described our initial screening process. Soon after, a patient’s mother called, saying she was told to call us to evaluate her son. When the patient and his mother showed up for the initial screening, we were told about his prior treatment and that they were in litigation. The patient was a 13-year-old boy who underwent previous treatment, part of which involved the orthodontist requesting the extraction of number 32, which was horizontally impacted. Well, the oral surgeon inadvertently took out number 31. As part of trying to remediate the surgical error, the orthodontist suggested the uncovering and surgical uprighting of number 32 and bringing it into the position of number 31. The boy’s treatment was ultimately finished, but with a far less than ideal result. Our screening appointments are designed to inform the patient in general terms whether orthodontic intervention is appropriate, about how long it might take, what the general approach to treatment would be, and so on. If we need records to do this, it’s usually just a panoramic x-ray, but for the most part, screenings are just a “look-see” appointment. Anyway, I conducted a normal screening appointment, and as with all of our screening appointments, there was no charge. I told the patient and his mother what I thought and what I proposed going forward, and they said thank you, said they would think about it, and left. Subsequently, their attorney requested a written report with a formal diagnosis, details of my clinical findings, what treatment options were appropriate to address Program director, Orthodontics and Dentofacial Orthopedics, NYU-Lutheran, Department of Dental Medicine, Brooklyn, NY. Am J Orthod Dentofacial Orthop 2015;148:1075-7 0889-5406/$36.00 Copyright Ó 2015 by the American Association of Orthodontists. http://dx.doi.org/10.1016/j.ajodo.2015.09.005
the problem, my recommendations for treatment, and a narrative to answer a number of questions. At this point, the managing partners of the practice and I decided that we don’t want anything further to do with this matter. I’m sure that whatever report I write will be used by the attorney against the oral surgeon and the original orthodontist, and I really don’t want to commit the time or the energy to this matter. I also don’t want to make enemies of the defendant doctors, since we all practice in the local community. What are my rights and responsibilities regarding this situation? What do I have to say to anyone, and how do I extricate myself from further involvement? Thanks in advance for your input. – Dr K. P.S. The attorney has since sent over previous records from the defendants-to-be for my use in constructing my report.
First, we don’t need to know whether the extraction note was correctly written, nor do we care who was at fault—the orthodontist or the oral surgeon. We do not care that the screening was free or that the attorney called initially to see whether we would see the patient. It is also irrelevant whether records were or should have been taken. None of these things matter, because if the patient’s mother had merely called to set up an initial appointment for her son, we would have conducted the screening and obtained the history, and we would then find ourselves in an identical situation facing the same set of questions. Let’s begin by defining our reader’s status. He was a subsequent treating practitioner called upon to render a type of second opinion: (1) his opinion of the previous treatment rendered, (2) his diagnosis of the patient’s present status, and (3) his recommendation for treatment, if any, going forward. This is extremely common and something most of us have done at one time or another. I say “most of us” because some orthodontists do not offer second opinions, but this is another issue for another day. Our duty now is to perform an appropriate examination, determine a diagnosis, and provide a preliminary treatment plan based on the clinical circumstances presented and using whatever records are required under the circumstances. If none are required, so be it. Obviously, the caveat will always exist that if the doctor and the patient proceed, appropriate additional records will then be required, and if some finding 1075
Litigation and legislation
1076
changes the provisional recommendations, that will be discussed with the patient. Since a professional opinion was rendered to and accepted by the patient, a doctor-patient relationship was established that requires the doctor to adhere to a number of obligations required of practitioners as a result of this legally recognized special relationship. One obligation is to write reports that are usually rendered in the course of doing business or those that are requested by the patient. The doctor has a right to charge for this service, but this is also another issue best left for discussion at another time. The key point here is that there is no special relationship between the doctor and the attorney. Unless the patient has signed a document giving the attorney permission to request medical records on the patient’s behalf, the attorney’s requests can be stuck in “a place where the sun don’t shine.” However, the patient can request, and the doctor must abide by this request, that a report of the doctor’s findings and recommendations be furnished to anyone the patient designates. The bottom line is that our reader must start typing. As to what to say, remember the tag line misattributed to Joe Friday on the old Dragnet series: “Just the facts, ma’am, just the facts.” You only want to say what you saw clinically, what you extrapolated from the records taken or reviewed, what your working diagnosis was, what your recommended treatment options were, and what your responses were to any questions having to do with your examination—nothing else. You should not provide an “opinion” relating to anything except as it may relate to the expected prognosis regarding the treatment you recommended. You are not an expert witness for the patient/plaintiff, nor can anyone force you to become one. Becoming an expert witness is a voluntary duty to be assumed by you if you choose to do so and for which you should be appropriately compensated. This is because you will be placing your professional reputation on the line, you will be subjecting yourself to the ire and scorn of your peers, you will be subject to brutal crossexamination that might significantly affect your professional standing and reputation, you will be taking time away from your practice and suffering a loss in income, you will endure significant stress that could affect your health, and so on. Yes, if you choose to become an expert witness, you should be appropriately compensated. Luckily however, as posed by our questioner, you are not an expert witness but merely a fact witness: one who is called upon to render factual testimony, whether as a requested written report, as responses to the plaintiff’s attorney’s interrogatories, or as testimony given at a deposition or trial. Do you have to do this? Unfortunately, yes. If you try to ignore this, you will be
December 2015 Vol 148 Issue 6
subpoenaed. So, like Nike said in their commercials: “Just do it.” But remember, nothing more than the facts. When queried about whether the previous doctor could have or should have done blah, blah, blah, your response is “I don’t know.” As to whether the doctor erred by doing or not doing whatever, your response is “I have no basis on which to form an opinion on such a question.” Do not respond to hypotheticals. Simply put, you are there to say, “This is what I saw, this is what I recommended, this is how long I estimated treatment will take, and this is how much my fee is.” Nothing more, nothing less. Can our reader extricate himself from further involvement? Maybe. Certainly, an extremely dry factual report will alert the plaintiff’s attorney that our reader is not being helpful to his client’s cause. Having nothing more to do with the patient’s future orthodontic needs will limit any input our reader will have to offer. Remember, the doctor-patient relationship is a bilateral consensual one, and our reader is under no obligation to accept the patient for further or future treatment. Finally, must our reader use the records supplied after his examination in fashioning his report? The answer is simple. What were you called upon to do, and will those records aid you in your task? If they are pretreatment records from the initial treatment, they may not be of any benefit in describing where the patient is now and what you proposed to do going forward. If they are posttreatment records relating to the first orthodontist’s care or the posttreatment oral surgery records, then they are probably viable pretreatment records for your purposes and may or may not be of benefit in fashioning your report about your recommendations for future treatment. Either way, your report will remain strictly factual. COMMENTARY
Kudos to our reader for stepping up to the plate and agreeing to see the patient, knowing that litigation was in the offing. Ethically, it was the right thing to do. As for not wanting to get involved any further—well, everybody has a different level of headache tolerance. Attorneys can be pushy folks at times; I know, because I am one. But behind all of the bluster is a bag of wind waiting to be deflated. Our reader does not owe the attorney anything. Any requests by him made without proper authorization, if they are responded to, may result in a HIPPA violation for our reader. Assuming that proper releases have been acquired, our reader has the obligation to generate a standard report on behalf of the patient. Think of it as a bare-bones synopsis letter addressed “To whom it may concern.” I appreciate our reader’s concerns about having to practice in a local community and the effect that “testifying against one of his own” will have on his
American Journal of Orthodontics and Dentofacial Orthopedics
Litigation and legislation
professional future, but like so many concerns of this type, it must be followed out to its logical conclusion. If he doesn’t do it, and no one else will do it, where does it leave patients who need someone to stand up for them? What if “them” is a member of your family who is in need; now what? No, not participating is not
1077
an option. Being an ethical practitioner is the only way to go. Memorize and recite the mantra: “This is what I see, this is what I recommend, this is how long it will take, and this is how much it will cost,” period. Whether you should become an expert witness is a discussion best saved for another day, but a fact witness? C’mon.
American Journal of Orthodontics and Dentofacial Orthopedics
December 2015 Vol 148 Issue 6
Who is entitled to what? Laurance Jerrold Brooklyn, NY
A
reader wrote to me recently, describing a situation and asking for guidance. The situation is common enough to warrant discussion. It went something like this. Larry: I’m a recent graduate, now employed at a multigroup specialty practice. The other day, an attorney called and wanted to know if we saw new patients for second opinions and what the process was. We said we did and described our initial screening process. Soon after, a patient’s mother called, saying she was told to call us to evaluate her son. When the patient and his mother showed up for the initial screening, we were told about his prior treatment and that they were in litigation. The patient was a 13-year-old boy who underwent previous treatment, part of which involved the orthodontist requesting the extraction of number 32, which was horizontally impacted. Well, the oral surgeon inadvertently took out number 31. As part of trying to remediate the surgical error, the orthodontist suggested the uncovering and surgical uprighting of number 32 and bringing it into the position of number 31. The boy’s treatment was ultimately finished, but with a far less than ideal result. Our screening appointments are designed to inform the patient in general terms whether orthodontic intervention is appropriate, about how long it might take, what the general approach to treatment would be, and so on. If we need records to do this, it’s usually just a panoramic x-ray, but for the most part, screenings are just a “look-see” appointment. Anyway, I conducted a normal screening appointment, and as with all of our screening appointments, there was no charge. I told the patient and his mother what I thought and what I proposed going forward, and they said thank you, said they would think about it, and left. Subsequently, their attorney requested a written report with a formal diagnosis, details of my clinical findings, what treatment options were appropriate to address Program director, Orthodontics and Dentofacial Orthopedics, NYU-Lutheran, Department of Dental Medicine, Brooklyn, NY. Am J Orthod Dentofacial Orthop 2015;148:1075-7 0889-5406/$36.00 Copyright Ó 2015 by the American Association of Orthodontists. http://dx.doi.org/10.1016/j.ajodo.2015.09.005
the problem, my recommendations for treatment, and a narrative to answer a number of questions. At this point, the managing partners of the practice and I decided that we don’t want anything further to do with this matter. I’m sure that whatever report I write will be used by the attorney against the oral surgeon and the original orthodontist, and I really don’t want to commit the time or the energy to this matter. I also don’t want to make enemies of the defendant doctors, since we all practice in the local community. What are my rights and responsibilities regarding this situation? What do I have to say to anyone, and how do I extricate myself from further involvement? Thanks in advance for your input. – Dr K. P.S. The attorney has since sent over previous records from the defendants-to-be for my use in constructing my report.
First, we don’t need to know whether the extraction note was correctly written, nor do we care who was at fault—the orthodontist or the oral surgeon. We do not care that the screening was free or that the attorney called initially to see whether we would see the patient. It is also irrelevant whether records were or should have been taken. None of these things matter, because if the patient’s mother had merely called to set up an initial appointment for her son, we would have conducted the screening and obtained the history, and we would then find ourselves in an identical situation facing the same set of questions. Let’s begin by defining our reader’s status. He was a subsequent treating practitioner called upon to render a type of second opinion: (1) his opinion of the previous treatment rendered, (2) his diagnosis of the patient’s present status, and (3) his recommendation for treatment, if any, going forward. This is extremely common and something most of us have done at one time or another. I say “most of us” because some orthodontists do not offer second opinions, but this is another issue for another day. Our duty now is to perform an appropriate examination, determine a diagnosis, and provide a preliminary treatment plan based on the clinical circumstances presented and using whatever records are required under the circumstances. If none are required, so be it. Obviously, the caveat will always exist that if the doctor and the patient proceed, appropriate additional records will then be required, and if some finding 1075
Litigation and legislation
1076
changes the provisional recommendations, that will be discussed with the patient. Since a professional opinion was rendered to and accepted by the patient, a doctor-patient relationship was established that requires the doctor to adhere to a number of obligations required of practitioners as a result of this legally recognized special relationship. One obligation is to write reports that are usually rendered in the course of doing business or those that are requested by the patient. The doctor has a right to charge for this service, but this is also another issue best left for discussion at another time. The key point here is that there is no special relationship between the doctor and the attorney. Unless the patient has signed a document giving the attorney permission to request medical records on the patient’s behalf, the attorney’s requests can be stuck in “a place where the sun don’t shine.” However, the patient can request, and the doctor must abide by this request, that a report of the doctor’s findings and recommendations be furnished to anyone the patient designates. The bottom line is that our reader must start typing. As to what to say, remember the tag line misattributed to Joe Friday on the old Dragnet series: “Just the facts, ma’am, just the facts.” You only want to say what you saw clinically, what you extrapolated from the records taken or reviewed, what your working diagnosis was, what your recommended treatment options were, and what your responses were to any questions having to do with your examination—nothing else. You should not provide an “opinion” relating to anything except as it may relate to the expected prognosis regarding the treatment you recommended. You are not an expert witness for the patient/plaintiff, nor can anyone force you to become one. Becoming an expert witness is a voluntary duty to be assumed by you if you choose to do so and for which you should be appropriately compensated. This is because you will be placing your professional reputation on the line, you will be subjecting yourself to the ire and scorn of your peers, you will be subject to brutal crossexamination that might significantly affect your professional standing and reputation, you will be taking time away from your practice and suffering a loss in income, you will endure significant stress that could affect your health, and so on. Yes, if you choose to become an expert witness, you should be appropriately compensated. Luckily however, as posed by our questioner, you are not an expert witness but merely a fact witness: one who is called upon to render factual testimony, whether as a requested written report, as responses to the plaintiff’s attorney’s interrogatories, or as testimony given at a deposition or trial. Do you have to do this? Unfortunately, yes. If you try to ignore this, you will be
December 2015 Vol 148 Issue 6
subpoenaed. So, like Nike said in their commercials: “Just do it.” But remember, nothing more than the facts. When queried about whether the previous doctor could have or should have done blah, blah, blah, your response is “I don’t know.” As to whether the doctor erred by doing or not doing whatever, your response is “I have no basis on which to form an opinion on such a question.” Do not respond to hypotheticals. Simply put, you are there to say, “This is what I saw, this is what I recommended, this is how long I estimated treatment will take, and this is how much my fee is.” Nothing more, nothing less. Can our reader extricate himself from further involvement? Maybe. Certainly, an extremely dry factual report will alert the plaintiff’s attorney that our reader is not being helpful to his client’s cause. Having nothing more to do with the patient’s future orthodontic needs will limit any input our reader will have to offer. Remember, the doctor-patient relationship is a bilateral consensual one, and our reader is under no obligation to accept the patient for further or future treatment. Finally, must our reader use the records supplied after his examination in fashioning his report? The answer is simple. What were you called upon to do, and will those records aid you in your task? If they are pretreatment records from the initial treatment, they may not be of any benefit in describing where the patient is now and what you proposed to do going forward. If they are posttreatment records relating to the first orthodontist’s care or the posttreatment oral surgery records, then they are probably viable pretreatment records for your purposes and may or may not be of benefit in fashioning your report about your recommendations for future treatment. Either way, your report will remain strictly factual. COMMENTARY
Kudos to our reader for stepping up to the plate and agreeing to see the patient, knowing that litigation was in the offing. Ethically, it was the right thing to do. As for not wanting to get involved any further—well, everybody has a different level of headache tolerance. Attorneys can be pushy folks at times; I know, because I am one. But behind all of the bluster is a bag of wind waiting to be deflated. Our reader does not owe the attorney anything. Any requests by him made without proper authorization, if they are responded to, may result in a HIPPA violation for our reader. Assuming that proper releases have been acquired, our reader has the obligation to generate a standard report on behalf of the patient. Think of it as a bare-bones synopsis letter addressed “To whom it may concern.” I appreciate our reader’s concerns about having to practice in a local community and the effect that “testifying against one of his own” will have on his
American Journal of Orthodontics and Dentofacial Orthopedics
Litigation and legislation
professional future, but like so many concerns of this type, it must be followed out to its logical conclusion. If he doesn’t do it, and no one else will do it, where does it leave patients who need someone to stand up for them? What if “them” is a member of your family who is in need; now what? No, not participating is not
1077
an option. Being an ethical practitioner is the only way to go. Memorize and recite the mantra: “This is what I see, this is what I recommend, this is how long it will take, and this is how much it will cost,” period. Whether you should become an expert witness is a discussion best saved for another day, but a fact witness? C’mon.
American Journal of Orthodontics and Dentofacial Orthopedics
December 2015 Vol 148 Issue 6