THE EDITOR'S CORNER
Advice has recently been published by the legal counsel of the AAO (Orthodontic Bulletin, July 1974) on the question of whether an orthodontist may discontinue treatment when a third party terminates its payment and the parents refuse to pay for continuing the treatment. The advice was that, if the parents cannot or will not pay, the orthodontist has the right to discontinue treatment for nonpayment, if he gives adequate notice and an opportunity for the parents to secure another orthodontist, and if the patient will not be left in worse condition than before the treatment began. Examples were given. On the one hand, if you have only bands and appliances on a case, the opinion was that the case can be discontinued upon giving adequate notice and determining if the parents want the appliances left in or removed. On the other hand, if teeth have been removed for orthodontic purposes and spaces remain, this is the kind of situation which the AAO counsel felt might require continuation of treatment for a reasonable length of time until the spaces were substantially closed. The advice included the caution that each case should be considered on its merits.
Good judgment may dictate bringing a case past some awkward stage in treatment before discontinuing and good judgment may distinguish between those who can continue payment and those who cannot. Nevertheless, I do not favor a blanket implication that extraction of teeth for orthodontic purposes places a special condition on the orthodontist's obligation. It is not correct to assume that extraction of teeth per se leaves the patient in worse condition than he was in prior to extraction. If the diagnosis was in agreement with common practice, I can't see a reason why there should be a distinction between the responsibility of the parents in the extraction and nonextraction situations. The basic question is whether an orthodontist does or does not have an obligation to treat a child for nothing. If there is an increased burden because of extraction spaces, that increased burden should be on the parents.
In spite of that reservation, I believe that this is the best opinion we have had from an official source on the subject of nonpayment and we should adopt it forthwith.
There does not seem to be a specific legal precedent to guide us. No one, to my knowledge, has reported a case or cases in which a court has ruled on whether an orthodontist can discontinue treatment in such circumstances. When the question has been posed to lawyers, they have tended to refer to legal precedents in contexts as close as they can get, which support the rights of the child. On occasion, a contrary opinion is presented, with the caution that it is unproven and that the law may vary from state to state. The fact seems to be that both opinions are unproven and the orthodontist who would prefer to avoid the hazard of legal entanglement has most often just continued to treat the child in the hope that he may eventually be paid. In fact, one argument has been made that we must complete the case and sue the father.
Custom dictates precedent in many situations. If we customarily follow the AAO advisory, a better precedent would be established than we have known up to now, not only in the matter of third party nonpayment, but in all questions of nonpayment, including that which may accompany a divorce of parents of an orthodontic patient, who are, in effect, the third party in their child's treatment.
A standard office procedure can be set up to deal with problems of nonpayment, which could include a series of communications which invite consultation, which seek to avoid interruption or termination of treatment, which spell out the hazards of each, and which place the liability with the parents. It should be generally accepted procedure for the orthodontist to say in cases of nonpayment, "There is no justification for me to continue to treat your child for free. There are hazards to interrupting treatment and they are so and so. Now you decide whether I should stop treatment and remove the appliances. If you do decide to do this, for a restarting fee following reevaluation, I will gladly re place the appliances when you are ready to resume payment, and continue the treatment."
There has been such a folklore built up around the supposed legal responsibilities of the orthodontist in cases on nonpayment that the advisory from the AAO counsel is welcome.
Non-Legal Considerations
However, there are serious non legal considerations raised when a third party such as an insurance company or a government agency terminates its payment on an uncompleted orthodontic case. The fact that there was a third party paying all or part of the orthodontic bill may have been what got the patient and the orthodontist involved in undertaking orthodontic treatment in the first place. Under present circumstances, the insuring agency can terminate payment if the contract for benefits is not renewed. In addition, the third party can determine that treatment has improved a malocclusion to a level at which it would not qualify for initiation of treatment under standards set by indexes of malocclusion. Therefore, it may be logical to them to decide on such a basis that a handicapping malocclusion has reached a point at which it is no longer handicapping.
The orthodontist, as a result of the advice of the AAO counsel, may now have a better basis for understanding his legal responsibilities in such cases. However, he may be faced with orthodontic, moral and ethical considerations that throw him as much in the middle as he ever was when he was led to assume that he also has a legal responsibility in such circumstances. We have all had situations in which family financial reverses or illness or death of the breadwinner have made it impossible for the family to afford orthodontic treatment and we have completed the case without additional fee. It is unreasonable to expect the same accommodation in cases in which the parents can pay, but do not.
If payment is terminated by a third party and the parents are indigent or marginally indigent, it is likely that there is no program to take over the financial responsibility for continuation of payment for the case. This is not a case of parents who can pay but do not, and even though the opinion with regard to the legal right of the orthodontist to terminate treatment was not based on the ability of the parents to pay, an unfair burden is placed on the orthodontist. If the case is going well, with a good cooperative patient, the orthodontist will most often feel obligated to complete the case for nothing. He is also more aware than the third party of the fact that not all improved cases will stay improved and that not all improvements will achieve what the treatment set out to accomplish. He may also not be in favor of indefinite retention of an incomplete orthodontic result.
Future Guidelines
We must have a better understanding with third parties, both private and government, that once an orthodontic case is undertaken, it must be funded through to a successful result. If we are involved in a case that will be dependent on the third party for payment, there should not be the possibility of termination of payment or treatment by the third party until the case has reached a point where the orthodontist can, in good conscience, terminate his treatment. That should become a guideline for our specialty in third party programs and a goal in future negotiations with third parties.
