Suing an Orthodontist for Breach of Contract?
adl...@yahoo.com
to complete the task he was paid for as any other person (non-dental
professional) would be?
I went to Ortho 1 to move my teeth to a particular position. He didn't
do that. So I went to Ortho 2, who then completed the job properly.
When we agreed on the treatment plan and fixed fee, Ortho 1 didn't put
any disclaimers or limitations on the results that he agreed to
provide me with (nothing about "I'll try my best, but the ultimate
results will be uncertain). I simply asked him if he could do what I
sought, and he said yes.
I will *not* sue for malpractice, since I know this DOES bring into
play any number of complications.
But I want to sue Ortho 1 to recover the fee I paid to Ortho 2. Is
there any reason according to common law that would preclude one from
suing a dental profession for breach of contract? Or any reason it
would not be as straightforward as suing any non-dental service
provider who failed to deliver what they've been paid for?
T.I.A. for any comments.
Grip
IANAL but...
Did you pay Ortho 1? Did the work done by Ortho 1 increase the amount
of money you had to pay Ortho 2 than if Ortho 1 never touched you
teeth?
You can sue for the damages you incurred. So you can sue for the
money you paid Ortho 1 but not what you paid Ortho 2, unless some of
that was a result of what Ortho 1 did.
But you can't sue for what you paid Ortho 2.
G
Steve Bartman
..
>When we agreed on the treatment plan and fixed fee, Ortho 1 didn't put
>any disclaimers or limitations on the results that he agreed to
>provide me with (nothing about "I'll try my best, but the ultimate
>results will be uncertain). I simply asked him if he could do what I
>sought, and he said yes.
..
Was this the entire transcript of your conversation? How did you
describe what you wanted, exactly? What did he say, exactly? Was there
any writing? What was said or done at the interim appointments? How
was the job paid for? Installments? Did you express dissatisfaction at
any point? What did he say or do then?
You're leaving out a boatload of facts.
Steve
David Martel
> Is there any reason that an orthodontist is not as legally responsible
> to complete the task he was paid for as any other person (non-dental
> professional) would be?
> I went to Ortho 1 to move my teeth to a particular position. He didn't
> do that.
Why? Did he plan further treatments? Did he feel that the job was done
per your wishes?
So I went to Ortho 2, who then completed the job properly.
>
> When we agreed on the treatment plan and fixed fee, Ortho 1 didn't put
> any disclaimers or limitations on the results that he agreed to
> provide me with (nothing about "I'll try my best, but the ultimate
> results will be uncertain).
A reasonable person does not expect perfection.
I simply asked him if he could do what I
> sought, and he said yes.
He said yes before or after a thorough exam?
> I will *not* sue for malpractice, since I know this DOES bring into
> play any number of complications.
>
> But I want to sue Ortho 1 to recover the fee I paid to Ortho 2. Is
> there any reason according to common law that would preclude one from
> suing a dental profession for breach of contract?
Not that I can think of. Indeed this would make a good small claims case.
However you will be suing someone with insurance and lawyers. They may
decide to go to a higher court.
Or any reason it
> would not be as straightforward as suing any non-dental service
> provider who failed to deliver what they've been paid for?
Will Ortho #2 agree to be an expert witness? You will need someone who
knows dentistry as a witness. How will you show that Ortho #1 failed to
complete the initial contract?
Good luck,
Dave M.
slide
[ortho 1 didn't deliver the results OP wished]
>
> But I want to sue Ortho 1 to recover the fee I paid to Ortho 2. Is
> there any reason according to common law that would preclude one from
> suing a dental profession for breach of contract? Or any reason it
> would not be as straightforward as suing any non-dental service
> provider who failed to deliver what they've been paid for?
>
I see nothing different in your case from any other case of breach
resulting in damages. I also think your POV of not suing for malpractice
and instead for damages to get to where ortho 1 promised you'd be sound.
I didn't see anything indicating malpractice in your OP.
The issue is one of case presentation. You state here that ortho 1 made
certain representations without any disclaimers. Can you prove that to a
preponderance? Did you have a written contract or was it all oral?
I'd suggest you first do a lawyer's letter to ortho 1 to see if you can
get things worked out without suing. If that doesn't result in
something, then either pursue the case with representation or if you
feel good about your method of presentation and the amount of damages is
within statutory limits, go for 'small claims'.
bat
G> money you paid Ortho 1 but not what you paid Ortho 2, unless some of
G> that was a result of what Ortho 1 did.
G> But you can't sue for what you paid Ortho 2.
Perhaps he can if Ortho 2 had to fix something that Ortho 1 "broke", and it
can be demonstrated that it was because of negligence.
mm
For that matter, can't you look at it that he paid O1 for the job, and
any money he had to pay O2 in addition to that was money he should not
have spent, so he is suing for the money he paid O2.
OTOH, he paid O1 and didn't get the services he contracted for, so he
can sue for the money he paid 01. :)
It would be more complicated if he had only partially paid 01. Then
he could only get the money he paid 02 that was the sum of what was
paid 01 and 02, minus 01's full quoted price. But isn't it clear in
that situation that money to be recovered is the money paid 02, in
excess of what the patient and 01 contracted for?
IANAL, so all I can say is maybe this does have to be a malpractice
suit, but how much more complicated will that be in this case? Surely
the second dentist has pictures and bite impressions of what the OP
looked like before D2 started, and after. Plus the judge can look at
his face now and in the D2 starting pictures**. Plus doesn't D2 write
a description of the situation before starting. All this is
subpoenable, right?, even if D2 won't write an affidavit or testify in
person. Are affidavits acceptable to any extent in small claims court
where the OP lives?
**(I'm guessing the complaint was about looks and not about "bite".
Since a major part of an orthodontists job is to provide good looks,
and since that was the original request, and since someone else
succeeded, what more is necesary to prove malpractice?
IANAL
adl...@yahoo.com
> Not in those terms. �ｿｽYou could sue as a simple breach of contract if,
> for example, you paid him in advance but he did nothing at all. �ｿｽBut
> that's not what happened. �ｿｽYour contract, whether you realize it or
> not, was for his services at a reasonable level of professional care.
> You got his services. �ｿｽWhether the level of care was reasonable is the
> issue.
So, if ANY service is provided at all, it automatically precludes
suing for breach of contract? To take an extreme example: He installs
the braces...in what was originally supposed to be about a 2 year
treatment...but the very next day throws up his hands and says "this
isn't going to work, there's nothing more I can do". Even if I
*chose* to approach that as a breach of contract, I've no legal basis
to do so?
>Every contract for dental, medical, legal,
> etc. services contains an implied warranty disclaimer and reasonable
> care standard. �ｿｽ
Thank you very much for explaining this. I wonder if you could direct
me to where I can find out more information about this concept
(particularly how it applied to dental contracts) of "implied warranty
disclaimer"? (note: some time spend searching on google hasn't turned
up much for me, so far)
p.s. I'm also wondering if your info is relevant in all states, or
just Michigan. I have spoken to a lawyer before, who seemed to
suggest it was my choice whether I wanted to approach my situation as
a breach of contract, or as malpractice. However, he didn't know even
the level of detail of my situation that I've written in this thread
here.
mm
<mart...@verizon.net> wrote:
>
> A reasonable person does not expect perfection.
The OP seems satisfied by the second dentists work, so it seems to
have been achievable. The op either doesn't expect perfection or the
second dentist achieved it.
>
>I simply asked him if he could do what I
>> sought, and he said yes.
>
> He said yes before or after a thorough exam?
Important to know, but if it required a thorough exam to answer the
question, it was up to the dentist to first do that exam. Or to issue
a corrected opinion after he did.
> Not that I can think of. Indeed this would make a good small claims case.
>However you will be suing someone with insurance and lawyers. They may
>decide to go to a higher court.
I think he should still be able to appear pro se if that happens, with
a little help when necessary. IANAL
> Will Ortho #2 agree to be an expert witness? You will need someone who
>knows dentistry as a witness.
Good questions.
When I was about 13 my mother took me to an orthodontist, complaining
about one front middle tooth that was clearly crooked. I had fallen
and hit it on a rock when I was 6, and my father didn't want to hurt
me so he didn't fully straighten it. My father was a dentist.
The orthodontist came recommended. He treated me for at least two
years, much money I presume, and when I was done, my mother pointed
out that the only thing she had complained about when she first took
me too him was still crooked. Maybe not as much, but clearly crooked.
Apparently all he had cared about was my "bite", despite my mother's
complaint at the start. He offered to file the crooked one horizontal
at then end. Neither I nor my mother wanted that.
Rather than admit he'd made a mistake or failed to finish, he just
insulted me. The man took a wire and ran it from the middle of my
forehead to the middle of my chin and said to her, "See, his nose
isn't in the middle of his face either" and then ran the wire from one
side of my face to the other and said "And his eyes aren't the same
height either". I kid you not. These are his exact words and exactly
what happened. What a creep. Thank goodness I didn't take him
seriously or I would have been really screwed up. My mother was
uncharacteristically quiet iirc, even though I know she was smart
enough to know his words were nonsense. There was no way his wire
showed anything, and no one had ever thought my nose and eyes weren't
in the exact right spots. I'm 62 and he'd be at least 80 now. I wish
I had thought about this more in my 20's and gone back and told him
what a jerk he was.
>Good luck,
>Dave M.
Bob
>I went to Ortho 1 to move my teeth to a particular position. He didn't
>do that. So I went to Ortho 2, who then completed the job properly.
>
>When we agreed on the treatment plan and fixed fee, Ortho 1 didn't put
>any disclaimers or limitations on the results that he agreed to
>provide me with (nothing about "I'll try my best, but the ultimate
>results will be uncertain). I simply asked him if he could do what I
>sought, and he said yes.
>
>I will *not* sue for malpractice, since I know this DOES bring into
>play any number of complications.
>
>But I want to sue Ortho 1 to recover the fee I paid to Ortho 2. Is
>there any reason according to common law that would preclude one from
>suing a dental profession for breach of contract? Or any reason it
>would not be as straightforward as suing any non-dental service
>provider who failed to deliver what they've been paid for?
In California, a patient can sue a medical provider for breach of
contract only if "he has clearly and unequivocally warranted that a
course of treatment recommended by him will, inevitably, produce a
certain result." Pulvers v. Kaiser Foundation Health Plan, Inc., 99
Cal. App. 3d 560, 564-65 (1979). To recover, the patient must
"consent[] to treatment in reliance on that promise." McKinney v.
Nash, 120 Cal. App. 3d 428, 442 (1981).
Grip
> �G> You can sue for the damages you incurred. �So you can sue for the
Yes, and that's in the second sentence you quoted from my post.
G
Cy Pres
>**(I'm guessing the complaint was about looks and not about "bite".
>Since a major part of an orthodontists job is to provide good looks,
>and since that was the original request, and since someone else
>succeeded, what more is necesary to prove malpractice?
That there is a professional standard in place, that Ortho1 failed to
live up to that standard, and plaintiff was harmed because of the
failure to live up to the professional standard. In this case, that
would generally require expert testimony as to the standard, the
deviation from the standard, the harm, and the nexus between the
deviation from a professional standard and the harm.
It's possible the sides could stipulate to it, but pretty unlikely. I
think this would only happen if the malpractice was so obvious that
Ortho1 would know as a fact that if he forced the plaintiff to hire an
expert to prove the harm, that he'd end up paying the costs of proving
it.
It sounds, though, in this case, that the harm (if there was any) was
successfully reversed by Ortho2's care, so the amount in controversy
is likely only to be that cost. It would be prudent for Ortho1 to
settle something like that if there was any merit at all to the claim.
As always, be aware of any relevant statute of limitations for medical
malpractice in the relevant jurisdiction.
Cy Pres
>> Not that I can think of. Indeed this would make a good small claims case.
>>However you will be suing someone with insurance and lawyers. They may
>>decide to go to a higher court.
>I think he should still be able to appear pro se if that happens, with
>a little help when necessary. IANAL
I'm not sure this would be breach of contract. It might, instead, be
professional malpractice, which generally requires expert testimony to
establish. Experts are expensive. For a dental failure to be breach
of contract, as opposed to medical malpractice, the dentist would
probably have had to promise a specific result.
Seth
Grip <gr...@cybermesa.com> wrote:
>Did you pay Ortho 1? Did the work done by Ortho 1 increase the amount
>of money you had to pay Ortho 2 than if Ortho 1 never touched you
>teeth?
>
>You can sue for the damages you incurred. So you can sue for the
>money you paid Ortho 1 but not what you paid Ortho 2, unless some of
>that was a result of what Ortho 1 did.
>
>But you can't sue for what you paid Ortho 2.
Suppose Ortho 1 said "I'll make it the way you want for $10,000"
(inventing specific numbers to make the discussion simpler).
He paid Ortho 1, and the result wasn't what he wanted.
He went to Ortho 2, and paid him $4,000, and the result was what he
wanted.
So it seems to me Ortho 1 ought to reimburse him the $4,000 which is
what it cost to finish the job Ortho 1 was paid for.
In a completely different context, but similar situation: someone says
he'll paint your house for $5,000. He starts, but doesn't finish (and
you've paid him in full). You hire someone else who charges you
$2,000 and finishes. Doesn't the first painter owe you $2,000? How
is this case different, other than Orthos are twice as expensive as
painters?
Seth
Stuart A. Bronstein
>> contract if, for example, you paid him in advance but he did
>> whether you realize it or not, was for his services at a
>> reasonable level of professional care. You got his services.
>
> So, if ANY service is provided at all, it automatically
> precludes suing for breach of contract?
No, that's not it at all. The traditional remedy in a situation like
this is to go to another orthodontist (as you did) and get what you
had originally contracted for. The first ortho is responsible for
anything you pay in addition to what his full charge would have been.
Did you pay Ortho 1 the full fee that you had agreed to? Was what
was done by Ortho 2 part of what Ortho 1 was supposed to do? If so,
then you seem to have a good case.
Stu
adl...@yahoo.com
wrote:
> adla...@yahoo.com wrote:
> Did you pay Ortho 1 the full fee that you had agreed to? �Was what
> was done by Ortho 2 part of what Ortho 1 was supposed to do? �If so,
> then you seem to have a good case.
>
> Stu
Yes, Stu. That is exactly how things unfolded. What Ortho 2 did was
exactly and precisely the same thing that Ortho 1 originally agreed to
do (and was paid for in full, by me) but did not do.
...Btw, all...subsequent to my first post I submitted longer post that
detailed the specific treatment I was supposed to get, and also
responded to many of the questions I had received here. That post
seems to be "lost in space". Moderator, did you receive it at all?
At any rate, c'est la vie
adl...@yahoo.com
> The nature of the case depends on the nature of the breach. �If the
> breach was non-performance, you might be able to recover restitution
> of part or all of the money you paid as a simple breach of contract.
> But you described your case as deficient performance (i.e.,
> substandard result), so it is a malpractice case.
Well, I'm wondering if you mean that is what I described actually
*amounts to*. Because I didn't actually use any of those words you've
written. And deliberately *avoided* using any them, since I want to
avoid the terminology used in malpractice cases. And I want to avoid
it since it will muddy the waters...IF it IS possible, under my
circumstances, to legitmately sue for breach of contract.
After my first post, I submitted a subsequent post describing in some
detail the actual work that was supposed to have been done on my
teeth, but wasn't done. That post hasn't shown up here. Might be
possible I hit a wrong button somewhere.
If I might try again: There was a gap between two of my teeth. I
asked Ortho 1 if he could INCREASE the gap by 1.5mm. He never
mentioned the possibility that there was any chance he could not
increase the gap by 1.5mm. His explained that it would require braces
to accomplish this. I agreed and paid him the fee had demanded. He
installed the braces. And he provided treatment, such as it was, for
more than two years. During that time, Ortho 1 *did* accomplish two
secondary objectives which had been added to the treatment plan
("well, since you're going to get braces anyway (to increase that gap
by 1.5mm)...why not take care of these other minor asthetic
shortcomings at the same time"). But he did not increase the gap
between my teeth.
I asked him to continue the treatment, because the main objective
hadn't been achieved. But he refused. His excuse at that time was
"now I find it is impossible to increase the gap according to the
original treatment plan". I went to Ortho 2, and asked if she could
open the space. She said she could. And she did.
Ortho 1 originally estimated that the overall treatment would take 2
years. It was after 2 years and 3 months that he started pressuring
me to take off the braces, saying "we can't open the space further".
But I have every reason to believe the real reason was he didn't want
to put further effort into the treatment, because he based the
contract fee on 2 years work. Since it was taking longer, he didn't
want to continue, as he put "work for free".
Silence DoGood
> suing a dental profession for breach of contract?
I might suggest you spend a day or more as an observer at the local
small-claims court or other where you might make the complaint. Strike
up conversations, you may be surprised at how easily even clerks and
bailiffs will talk to you, ...the sandwich girl..., the law-school
librarian. They all "hear stuff" and nobody ever asks what they
think. Also, the records kept are public. Ask!
I suggest you tread carefully. If he can make any claim to thinking
that you were "satisfied" after his explanations you are probably out
of luck. Be especially wary if you can be forced to pay for his
defense.
If you paid him $80 per month on promise to be finished in two years,
then went to someone else for another year, can he claim to have been
ready to continue for another year which was needed due to "unforeseen
circumstances"? What would HE have charged for that?
The harsh reality is that at the very minimum you will need to prove
that he knew or should have known that your level of satisfaction
could not be met by his treatment plan and price. To get this, you may
need to find and pay an expert, presumably a licensed orthodontist, to
testify, who may have to disclose any such agreement. Even if you win,
you probably only get your actual losses which probably won't pay for
the expert testimony.
The defense will be that YOU knew or should have known that his plan
and price were just estimates. He likely will "not recall" the
conversation you remember vividly and that he is allowed a certain
amount of "puff" to his descriptions especially because such is
"standard in the industry".
Suppose you hired someone to sing and dance at your wedding and you
think it was pathetic. You don't get breach-of-contract by showing a
video of Michael Jackson. What did the successful orthodontist have to
say about the previous work? How did you find him the second time
around? Could you have done that research the first time?
You may wish to file some sort of ethics complaint. It won't get
money, and probably will get no action unless there are enough
complaints to show a pattern of deceipt, but if complaints accumulate,
he will become more likely to find another line of work.
bat
news:c422bfb3-ab9e-4f54...@d4g2000prc.googlegroups.com...
Ah, right, sorry, I missed the "unless".
adl...@yahoo.com
> On Jul 20, 4:15�pm, adla...@yahoo.com wrote:
> I'm confused about what you think you can gain here. �You already
> asked if you can sue for breach of contract. �I told you in what I
> thought were clear terms that your case would be for MALPRACTICE,
> regardless of what label you stick on it. �
So I think the answer to my question would have been "yes, that is
what it amounts to".
I am trying to gain something. Just as you allude to further in your
comment, I'm trying to avoid triggering malpractice legal standards.
That has been my underlying concern.
> And by the way, you don't really think the ortho or the court will
> care what I say one way or the other, do you?
I doubt it. But I care what you say. I think your info has been
extremely helpful. You have my sincere appreciation.
> These details are not relevant to the question you asked. �The reality
> is that the ortho provided you with professional services designed to
> accomplish the result you requested.
As a side note: I didn't get into the detail that Ortho 1 had actually
installed braces on my teeth on two separate occasions (he not having
achieved what I had asked for the first time, I actually paid him to
put a second set of braces on to try and get it done). However he
didn't achieve it, even with the second set. In fact, when I went to
Ortho 2, she told me "those braces do no seem designed to accomplish
the result you requested. It actually looks like he is trying to do
something quite different than what you requested".
Cy Pres
>I am trying to gain something. Just as you allude to further in your
>comment, I'm trying to avoid triggering malpractice legal standards.
>That has been my underlying concern.
It may be possible that if the only actual claim you have sounds in
malpractice, that pleading it as a breach of contract will leave you
with no viable cause of action at all. One generally cannot transform
one kind of legal action into another by simply pleading it that way.
I'm not saying that's actually the case here, but as a general matter,
pleading a medicine-related claim as breach of contract is very
tricky.