By TDIC Risk Management staff, DrBicuspid.com contributing writers

January 31, 2019 -- DrBicuspid.com is pleased to be able to bring you these legal cases originally published by The Dentists Insurance Company (TDIC) and the California Dental Association. Whether you practice in California or not, the cases presented here address issues that every practice may face.

It's hard to quantify the value of dental treatment. After all, good oral health is essential to overall health, making dental treatment priceless. But in reality, there's a cost associated with dental care. Is it worth a new house? New landscaping? A swimming pool? An expensive watch? A motorcycle?

Bartering is a common practice and it may be beneficial in a dental setting, as it allows patients to receive treatment they may not otherwise easily access or afford. However, bartering is not without significant risk. Documenting the details of such agreements can help protect dentists should such a bartering agreement turn sour.

Landscaping services

One dentist contacted TDIC after bartering with a patient for landscaping services in exchange for a full-mouth reconstruction. The patient had compromised occlusion and poor oral hygiene, and he hadn't seen a dentist in many years. The dentist and patient verbally discussed the treatment, the patient agreed to the treatment plan and the dentist began the treatment -- with nothing more than a handshake to seal the deal.

After completing the first phase of the treatment, which included crowns on 10 teeth and several implants to replace missing teeth on the lower arch, the patient started to complain about his bite. The dentist offered to redo the work. However, the patient refused due to a loss of confidence in the dentist's abilities. The patient canceled his upcoming appointments and asked the office to stop contacting him.

The patient ultimately went to a prosthodontist who recommended redoing the treatment on 28 teeth, which would cost $55,000. The patient contacted the dentist and requested he pay for the treatment by the specialist. The dentist refused and reminded the patient that the landscaping job still was not finished, which was part of the original agreement. Two months later, the patient retained an attorney and filed a lawsuit. The demand to settle was $450,000.

The dentist's records did not substantiate much of his recollection of events and failed to document a comprehensive treatment plan. The dentist did not produce any study models or a wax-up. The defense experts could not support the case because of inadequate documentation. The court ordered the case to mediation, and the defendant agreed to a settlement. The matter was resolved for a low six-figure amount.

House remodel

In another case, a dentist made a deal with a contractor to remodel the dentist's house in exchange for full-mouth reconstruction for his wife. Both parties agreed to the proposal based on a handshake agreement.

The dentist treated the patient at a prosthodontist's office so that the specialist could oversee the case and place implants. The dentist placed several crowns and paid the prosthodontist to place the implants. While the patient was in provisional crowns on a few teeth, one of which needed root canal therapy, her husband abandoned the remodeling job and failed to hold up his end of the agreement.

The dentist was no longer willing to treat the patient unless the contractor resumed working on his home. The dentist contacted TDIC to discuss patient dismissal. Our analyst advised the dentist that he could not abandon the patient midtreatment and recommended he complete the treatment before initiating the formal dismissal and collection processes.

Weigh the risks

When considering whether to barter with patients, it's important to weigh the risks. If you decide to proceed, the first step is drafting a bartering agreement. The agreement must outline the specifics of the services to be traded. This should include the estimated value of each service.

“Agreements should also address what to do if things go sideways.”

The agreement should also include the inclusions and exceptions. For example, a dentist could agree only to a cleaning and bridge, with a stipulation that any additional required or requested treatments would be at the patient's expense. Similarly, the patient should outline exactly what is included on his or her end. For example, rather than "landscaping," it could specify square footage, types of plants used, lighting, watering system, hardscapes, and so on.

Agreements should also address what to do if things go sideways:

  • What happens if the treatment plan changes due to unforeseen circumstances?
  • What happens if there's a problem with the treatment and the patient wants a refund?
  • What happens if the contractor uncovers faulty wiring or a water leak that needs addressing?
  • What happens if either party is unhappy with the final result?

Unlike contractors or landscapers, dentists hold a legal and ethical obligation to protect a patient's health. Treatment and payment arrangements should always be two separate considerations. Recommended treatments should be based on clinical findings, and treatment plans should be based on the value of the job.

Remember that a patient's ability to pay, or failure to hold up their end of an agreement, does not relieve dental professionals from their responsibility to provide a detailed diagnosis of a patient's treatment needs or allow a dentist to abandon a patient midtreatment.

Bartering agreements also require dentists to keep accurate documentation, just as they would with any other patient. This includes thorough treatment plans outlining the risks, benefits, and alternatives to treatment, expected timelines for treatment and services to be completed, and recommendations based on clinical findings (not based on what the agreement dictates).

It's also important to note that the Internal Revenue Service has rules addressing bartered income.

This column was written by TDIC's Risk Management staff and originally appeared on that organization's website. DrBicuspid.com appreciates TDIC and the California Dental Association allowing us to reprint this important information. For more information, call the TDIC Advice Line at 800-733-0633.

Disclaimer: Nothing contained in this column is intended as legal advice. There are variations in rules of practice, evidence, and procedure among U.S. states. Some of the facts and other case information have been changed to protect the privacy of actual parties. DrBicuspid.com recommends contacting an attorney for legal advice.

The comments and observations expressed herein do not necessarily reflect the opinions of DrBicuspid.com, nor should they be construed as an endorsement or admonishment of any particular idea, vendor, or organization.


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