Your teenage patient has perfect attendance atschool. If she keeps it up, she will get a $5000scholarship for college. The rules say that the

only excused absences are medical appointments thatare less than half a day’s duration. In addition, a notefrom the doctor attesting to the appointment must bereceived by the school within 2 weeks of the appointment.

Your adult patient works for a company thatrequires those who miss work to produce a writtenexplanation for the absence within 15 days. If themissed time is for medical reasons, a letter from theattending physician verifying the medical need for themissed time must be submitted. If the required paper-work is not received in time, the company’s policy is todismiss the employee.

Suppose you don’t submit the paperwork that yourpatients need within the time periods noted above. Areyou liable to them for the lost scholarship or the lostwages? Chew v Meyer, 527 A2d 828 (Md Ct App1987), answers this question.

Chew was required by his employer to produce awritten explanation for any absence within 15 days ofthe last day worked. If it was for medical reasons, awritten explanation—no particular form was required,so a memo or an insurance form would suffice—fromthe physician had to be submitted. The patient enteredthe hospital for some minor surgery to his leg. Beforehis admission, Chew gave his doctor an insurance formand told him that he needed it completed and returnedto his employer promptly. On the day of admission, heasked the doctor to fill out the form then and there. Thedoctor said that he could not do that but would give itto his secretary who handled such matters for him. Theplaintiff implored, “Make sure you get this done withinthe next week… or it could cost me my job… .” Dur-ing the next 11 days, the plaintiff made severalinquiries of the doctor and his secretary about theinsurance form and again reminded them that he could

lose his job if he didn’t return the papers on time. Theform was completed 13 days after it was given to thedefendant, but it was not received by the company untilthe eighteenth day after the employee’s last day ofwork. As a result of Chew’s failure to comply with thetimely supporting documentation requirement, he wasfired from his job. The plaintiff sued, the trial courtsummarily dismissed all causes of action, and theplaintiff appealed.

The appellate court upheld the trial court’s ruling,except that it allowed the breach-of-contract claim andremanded it back for consideration by the jury. Thecourt’s analysis is worth noting. Every practicing doc-tor has had to fill out insurance forms, workman’s com-pensation forms, disability forms, accident forms, evenschool excuse notes. We have had to write letters toattorneys, to other doctors—it’s part of what we do. It’swhy we hire secretaries. Can we really be liable to apatient for damages if we don’t complete these forms?The court held that this is a determination to be madeby a jury. Let’s follow the court’s reasoning.

Looking strictly at the legal principles involved, thecourt turned to a banking case that dealt with economicdamages suffered because of negligence in processinga loan application. This court cited the prior decision,noting that “courts generally will impose tort liabilityfor negligently inflicted economic loss when an ‘inti-mate nexus’ exists between the parties… which is sat-isfied by contractual privity or its equivalent.” In addi-tion, the previous case held that “the contractualrelationship [between the parties] included an impliedduty to process the loan application with reasonablecare.” (cit. omit.) Turning back to Chew v Meyer, theappellate court noted that, traditionally, the idea that adoctor was required under the terms of the doctor-patient contract to submit insurance forms or medicalinformation to the patient’s employer within a certaintime frame would have been dismissed out of hand asbeing beyond the scope of the doctor’s duty to use hisor her best efforts to treat and cure. However, the courtwent on to state:

The traditional scope of the contractual relation-ship between doctor and patient… has expanded over

Program Director, Postgraduate Orthodontics, New York University College ofDentistry.Am J Orthod Dentofacial Orthop 2001;120:219-20Copyright © 2001 by the American Association of Orthodontists.0889-5406/2001/$35.00 + 0 8/1/113970doi:10.1067/mod.2001.113970

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LITIGATION, LEGISLATION, AND ETHICS

Expanding the scope of the doctor–patientcontractLaurance Jerrold, DDS, JDMassapequa Park, NY

220 Litigation, legislation, and ethics American Journal of Orthodontics and Dentofacial OrthopedicsAugust 2001

the years as a result of the proliferation of health anddisability insurance, sick pay and other employee ben-efits…. Today, the patient commonly and necessarilyenlists the aid of his or her physician in preparingclaim forms for health and disability benefits. Suchforms ordinarily require information possessed solelyby the treating physician as well as the physician’s sig-nature attesting to the bona fides of that medical infor-mation.

…According to the appellant [the plaintiff] Dr.Meyer accepted the insurance form from him with theknowledge of the consequences appellant would sufferif the form was not processed promptly. Chew repeat-edly urged the doctor and his secretary to fill out theform so that he would not lose his job. In response thedoctor or his secretary repeatedly assured Chew thatone of them would attend to it immediately. Dr. Meyerwas fully cognizant of Chew’s reliance on those assur-ances. Such a combination of either a contractualobligation or a gratuitous undertaking arising from the‘intimate nexus’ of the doctor/patient relationship,coupled with the patient’s reliance, the risk of harm,and the doctor’s knowledge of both the reliance andthe risk is sufficient to give rise to a tort duty to act rea-sonably in fulfilling the obligation.

In an atypical fashion, the court also noted that oneother legal argument could also lead to the same result.Under the laws of agency, recovery might have beengranted as the physician in this situation acts as anagent of the patient. The court noted that “the relation-ship which exists between an agent and his principal issufficiently close to constitute an ‘intimate nexus’ thuspermitting the imposition of liability upon the agent foreconomic losses incurred by the principal as a result ofthe agent’s failure to exercise reasonable care and skillin performing his responsibilities.”

COMMENTARY

It’s been said before, by both practice managementexperts and risk management educators, that we are ina service-related business. Yes, many of us would likeorthodontics to return to the cottage-industry days ofyesteryear, when we practiced our profession withoutall the rigamarole of third-party this and that and with-out paperwork up the you-know-what. But, like it ornot, we are a service-related business. And, as with anyother business, there is exposure to risk on all fronts:not just about how good a job we do, but also abouthow good we do our job. Sad that it is a job, but it is.So, what is the risk management lesson that we learnfrom this case?

There was no malpractice committed in this case;nevertheless, the doctor had liability exposure. Poormanagement systems create this exposure. This is anew area of risk exposure that every practitioner shouldnote. We have done fairly well in addressing the pro-fessional liability (malpractice) risk-managementaspects of our practice. Now we must look out for thenew dragons that threaten our little kingdoms. How canwe slay them if we can’t even recognize them?Premises liability, landlord-tenant liability, employee-employer liability, ergonomic workplace liability, con-tractual liabilities, intellectual property and copyrightinfringement liability, the list can go on and on. TheAAO is planning to sponsor a symposium on the ortho-dontist as CEO soon. I hope some of these issues willbe included. More business courses should be incorpo-rated into our graduate programs if our younger col-leagues are to avoid many of the pitfalls we learned inthe school of hard knocks.

Today’s practitioners have to be more than justtechnically proficient; they have to be technical profes-sionals, and, like professionals in any endeavor, part ofit involves having business savvy. That’s the lesson totake from this case.

Information pertaining to litigation, legislation, and ethics will be reported under this section of the AmericanJournal of Orthodontics and Dentofacial Orthopedics. Manuscripts for publication, readers’ comments, andreprint requests may be submitted to Laurance Jerrold, DDS, JD, 82 Laurel Dr, Massapequa Park, NY 11762.