CDS 238 “Ethical Situations and the Law”

CDS238“Ethical Situations and the Law” February 14, 2011 Sharon P. Turner, DDS, JD

Today’s Topics • Fraud in dental practice • Patient abandonment in dental practice • Healthcare Integrity and Protection Data Base (HIPDB) • National Practitioner Data Base (NPDB)

Learning Goals • Know the elements of fraud so as to recognize actions that are considered fraud in dental practice • Know the elements of patient abandonment so as to recognize actions that are considered abandonment of a patient in dental practice • Know what the HIPDB is and how a dentist gets entered into this data bank • Know what the NPDB is and how a dentist gets entered into this data bank

Integration of today’s topics into CDS 838 • Justice from a legal perspective means the proper administration of laws, similar wrong behavior gets similar punishment, fair handling • Justice from a bioethical perspective instructs that benefits and burdens ought to be distributed equitably, scarce resources allocated fairly, one should act such that no one person or group bears a disproportionate share of burdens (distributive justice) or gains a disproportionate share of benefits • Justice in general is associated with moral rightness or goodness in human actions

Guiding Thoughts • Keeping the best interest of your patient always in mind will serve you well • Always ask yourself if this treatment is what you would want for yourself or your family • There is honor in admitting that your outcome is not as desired and you want to correct the situation • Ignorance of the law is NO excuse!

General Areas of the Law • Criminal: Generally codified common law, but if there are gaps in statutes, go back to common law for meaning. Guilty (convicted) or innocent (acquitted). Fines or imprisonment, even loss of life. • Civil: Some is codified, but much is derived from the publication of similar cases heard in appellate courts. Liability or no liability. • Administrative: Often takes the form of regulations. Completely statutory. Overseen by agencies such at the KBD

Two Types of Torts Negligence Intentional Action taken purposefully Intent may be inferred if a person is “willfully ignorant” Battery, Fraud, Abandonment, Defamation • Mistake • Failure to meet the standard of care which is the duty that all health care providers have to their patients • Malpractice= Bad practice • Elements=Duty, Breach, Causation, Damages • Expert establishes standard of care

Patient Abandonment • The intentional, unilateral, nonconsensual termination of a dentist/ patient relationship before completion of services agreed to or necessary follow up has been performed • Is intentional form of malpractice

Elements of Abandonment • Intentional or foreseeable from decisions made • Unilateral • Nonconsensual • Termination of relationship • Prior to completion of treatment agreed to or follow up required after treatment • Resulting in harm to the patient

Negligent Discharge • Different from abandonment in that the decision to terminate care is based on failure to use due care in deciding that treatment or follow up is no longer needed by the patient • Is negligent form of malpractice

So what is the difference? • You may still get sued in civil court • You may still get disciplined by the Board of Dentistry in an administrative proceeding • Unlike in a negligence action where an expert witness is mandatory to establish breach of the standard of care, no expert witness is needed to prove abandonment • Your malpractice insurance may not, probably will not, cover an intentional form of malpractice if you lose in litigation!

PATIENT Cooperation Keep appointments Follow advice Take medication Pay for services DENTIST Complete treatment In timely fashion Acceptable quality Follow up afterwards as needed Refer to a specialist for treatment beyond the scope/skill Maintain current skill and knowledge DUTIES

Examples of Abandonment from Actual Litigation • Unqualified refusal to further attend to patient • Express declaration or statement of withdrawal • Leaving patient during or immediately after an operation or procedure • Failure to attend to a patient despite a promise to do so • Unexplained failure to continue attending to patient • Refusal to treat a patient at a specific time or place • Undertaking care that is beyond skill level and not rapidly placing the patient in the hands of a specialist

Dicke v. Graves668 P.2d 189 (Kan.App. 1983) • Facts: Mrs. Graves was a patient of Dr. Dicke from 1974 until 1979. She had a difficult dental history, with complex and continuing problems. She had experienced complete restoration of all of her teeth which was complicated by TMJ disorders, jaw thrust, and sensitivity to electrolytic interactions. In 1979 she reported and Dr. Dicke confirmed fractures in her porcelain bridgework. X-rays were made and no other problems were disclosed. Two weeks later she complained of a toothache and Dr. Dicke noted movement of the bridgework and concluded there were stress fractures in bridge and that she would required a repeat complete restoration of her teeth.

Dicke v. GravesContinued Six weeks later impressions were taken to determine a recommended compete restorative treatment approach. Mrs. Graves continued to have discomfort. She and her husband made multiple telephone calls and hand delivered a letter seeking rapid commencement of treatment as she was in continuous discomfort. Dr. Dicke did not respond. One month after hand delivering the letter to Dr. Dicke, Mrs. Graves sought treatment with another dentist who made the same diagnosis as Dr. Dicke and immediately began the comprehensive treatment which was completed in December.

Dicke v. GravesContinued There was no complaint that any diagnoses were flawed or that any of the treatment that Dr. Dicke provided was deficient. (No alleged breach of the standard of care for diagnosis or treatment.) Dr. Dicke sued Mrs. Graves (presumably for nonpayment of services) and she counterclaimed for patient abandonment. At the trial court level, the jury entered a judgment against Dr. Dicke and he appealed.

Dicke v. GravesContinued The issue which the appeals court addressed was: Did Dr. Dicke withdraw from the patient dentist relationship? The court determined that Dr. Dicke was non-diligent in his care, that is untimely, delayed, inattentive all of which were if anything negligent BUT NOT ABANDONMENT. Therefore the trial court judgment was reversed.

Lessons from Dicke v. Graves • Dr. Dicke was lucky that Mrs. Graves’ lawyer brought suit under the wrong cause of action and did not prove abandonment when negligence might well have been provable. You won’t always be lucky! • Dr. Dicke probably got into this because he sued Mrs. Graves for nonpayment. If you are going to sue for nonpayment, be sure that you have “clean hands” yourself. • Legal cases are very fact specific. The jury or judge must take the unique facts in any case and apply the appropriate law. A small change in facts can render a very different outcome.

Lessons from Dicke v. GravesContinued • Respond to your patients in a timely manner • If you do not wish to continue care or feel that the situation is beyond your skill level, find another provider or a specialist to whom you can refer the patient in a timely manner • Never leave town without having someone available to take call for you who has agreed to take call and having your office answering machine or answering service clearly instruct patients what steps to take should they need dental services in your absence

How do I protect myself from liability for patient abandonment? • Review “patient duties” • If a patient is not living up to the patient duties and you ARE living up to yours, consider termination of the patient/dentist relationship • Terminate the relationship by letter, sent by certified mail, return receipt requested. State the reason for the termination of the relationship. The reason cannot be a pretense intended to cover a discriminatory reason for termination of the relationship, e.g., HIV status

Protections from Abandonment Actions con’t • Provide a 30 day period (or whatever is reasonable for the situation, not less than 30 days) during which you will be available to provide emergency treatment. • Do not terminate care while a procedure is ongoing, even if you do not think that you will get paid. Finish the procedure and the required follow up first, then dismiss the patient. Special considerations for orthodontic cases!

What about “dentist abandonment?” If a patient is overdue for recall, has failed to come back to get definitive crown placed, write the patient a letter and place a copy in the chart

Fraud in Dental Practice • An intentional perversion of the truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. • The false representation of a matter of fact by words or conduct, false or misleading allegations or concealment of that which should have been disclosed.

Elements of Fraud • Representation of something as fact or omission thereof • That is material (essential) to decision-making or action • That is false • That the presenter knows it is false • That the presenter intends it to be acted upon • That the person to whom the fact is represented does not know is false • That the person to whom the fact is represented relies upon in taking action • That the person has a right to rely upon the representation due to relationship • That the actor suffers damage of a consequence of reliance and action upon the false information

Examples of Fraud in Dental Practice • Telling an untruth to induce a patient to have a treatment • “Up coding” a procedure, i.e. MO becomes MOD or all extractions are “surgical extractions” • Billing for procedures never performed • Billing for services not yet completed even upon patient request • Overbilling/double billing (see Nov. 2004 AGDImpact, p. 14, “Top clinician questions esthetic dentistry over treatment” Dr. Gordon Christensen • Waiver of an insurance co-payment or deductible

Examples of Fraud in Dental Practice (con’t) • Charging different fees (higher) to insured patients than to self pay patients systematically • Alternation and/or destruction of records • Making false entries into records • Providing false or purposely incomplete information to a licensure board, credentialing office or third party payer • Billing for work done by someone else, i.e. attending billing for work done by resident when attending is not present for “critical parts of the procedure”

Miller v. Commonwealth of Pennsylvania, State Dental Council(Pa.Cmwlth, 396 A. 2d 83, 1979) • Facts: Dr. Miller owned a sole proprietorship dental practice specializing in oral and maxillofacial surgery. He had three other oral surgeons working in his clinic, presumably as independent contractors rather than employees. An investigation and review conducted by representatives of Pennsylvania Blue Shield of those persons or institutions receiving more than $10,000 in payment for oral surgery services for any specific year revealed numerous discrepancies at the Miller Clinic.

Miller v. CommonwealthContinued • The insurance company reported these discrepancies to the Council, which issued citations charging the 4 surgeons with filing false claims in violation of the law prohibiting fraudulent or unlawful practices or fraudulent misleading or deceptive representations and unprofessional conduct detrimental to the public health, safety, morals or welfare.

Miller v. CommonwealthContinued • The surgeons were sited for submitting claims to Blue Shield for the removal of impacted teeth, when, in fact, the Council found that the x-rays and other documents available to them indicated that the teeth extracted were NOT impacted. More than 100 such discrepancies were documented. • Blue Shield coverage excluded coverage for oral surgical services related to the extraction of teeth other than fully or partially impacted teeth.

Miller v. CommonwealthContinued • Each of the surgeons had executed an authorization agreement accepting full responsibility for all statements, representations, and certifications appearing on all claims submitted to Pennsylvania Blue Shield • The surgeon who preformed the treatment was responsible for listing the exact operative procedure on the patient’s chart. • After 4 days of extensive hearings, the Council ordered suspension of the licenses to practice of all 4 surgeons for 3 months for the nonowners and 6 months for the clinic owner for fraudulent and unlawful practices. • The 4 surgeons appealed the suspensions of their licenses. The owner’s appeal was handled separately from that of the 3 other surgeons.

Miller v. CommonwealthContinued • On appeal the surgeons argued that it wasn’t their fault, it was the clerks who processed the claim forms! The court responded that this “argument seems almost ludicrous in view of the fact that they assumed full responsibility for all information submitted over their signature stamps.” • They also argued that they shouldn’t be charged with “knowing the claims were false.” The court found that the practice at the clinic indicated at the very least a “reckless ignorance” and in fact the evidence did indicate that they had actual knowledge of the falsity of the claims.

Miller v. CommonwealthContinued • They also argued that they didn’t mean to defraud to which the court responded, “Where the necessary consequence of an act is to defraud, it is no defense that the actor had no intention to cheat or defraud.” • They also argued that the Council had no jurisdiction of this matter since it did not involve a dentist/patient relationship and the insurance company had other remedies available to it to which, in a beautiful description of the Council’s responsibility to protect the public, the court responded:

Miller v. CommonwealthContinued “…we are not here dealing with a civil suit to enforce individual rights. Rather, we are dealing with an administrative agency of the sovereign which seeks to carry out its duty to protect the citizens of the Commonwealth by regulating the conduct of its licensees. It is the interests of many rather than the interests of the few which impels the Board.”

Miller v. CommonwealthContinued • The court upheld the suspensions of licenses of the 3 nonowners but reversed the suspension of Dr. Miller’s license because it found that there was insufficient evidence to show that he knew of the fraudulent claims and none of the claims in question had been signed via Dr. Miller’s signature stamp. Further, because the other surgeons were independent contractors and not employees, he could not be held responsible for their actions under the legal doctrine of respondeat superior, which would otherwise make the master (employer) responsible for the wrongdoings of his servants.

Lessons from Miller v. Commonwealth • Don’t “up code”- it is fraud • It doesn’t matter if the patients want you to or that they get benefit from what you do • Don’t try and blame the hired help- you are ultimately responsible, especially where you sign a contract so stating • You must abide by all the terms of contracts that you sign with insurance companies- know what is in those contracts! • Courts are very deferential to administrative agencies such as Boards of Dentistry provided that they have followed their own procedures. For example, Rules of Evidence are relaxed in terms of what is admissible and what is not in agency hearings.

Lessons from Miller v. Commonwealth (con’t) • Insurance companies may elect from among multiple possible remedies including filing complaints with the licensing board (administrative law), civil suits for refund of money obtained under false pretense (civil law), or, if the magnitude is sufficient, pursing criminal charges for fraud (criminal law) as a punishment and to put the dentist out of business! • Penalties for fraud can be suspension or loss of license, fines, imprisonment

Caudill vs. Kentucky Board of Dentistry2006 WL357879 (Ky. App.) Dentist entered an Alford plea and was convicted of Medicaid Fraud KBD placed his license on probationary status until he paid the restitution ordered by the court

Caudill vs. KBD 2006 • Court held that: 1) the crime was one of moral turpitude 2) KDB has discretionary authority to discipline for this; 3) Alford conviction is a conviction and 4) It doesn’t matter if D didn’t know the plea would subject him to KDB disciplinary action

Adames vs. VelasquezNY (2008) • D were a laboratory technician working in his wife’s dental practice and his wife, the dentist • P alleges that D offered to provide discounted dental services if P came to the office at night and paid in cash • P alleges that he was never told that D was not a dentist • Restorative TX done by husband was substandard, caused pain and subsequent tooth loss

Adames vs. Velasquez • D motion to dismiss denied • Fraud may be committed by a failure to speak • Wife is potentially liable under respondeat superior • Receipt of payment not necessary for fraud

Adames vs. Velasquez • Cited a KDB case, unlicensed and well intentioned charitable dentist trained religious missionaries in “practical dentistry”- KBD barred the action, the court upheld saying. “Nor can we accept the appellant’s proposition that the statutes are only aimed at masqueraders and quacks who prey upon the public for compensation.” (Lewis v. Kentucky State Dental Examiners, 300 S.W.2d 241, 1957)

Adames vs. Velasquez • Employer dentists must ensure that employees are properly licensed

How bad can it get?

Office of the Attorney General State of California Department of Justice • September 22, 2004 • Attorney General Bill Lockyer files criminal charges; This will become: State v. Teo • Central Valley Dentist and 19 others charged with defrauding the state Medi-Cal System of $4.5 million by performing unnecessary dental work on unsuspecting patients

State v. Teo • Defendant placed adds on missing children flyers and offered gifts or rebates to Medi-Cal beneficiaries who sought services through clinical network • Also charged with workers’ compensation fraud, conspiracy, grand theft, child abuse, elder abuse, assault and intentional infliction of great bodily injury.

State v. Teo • Dentists who participated were given kickbacks of 25% which provided an incentive to over treat • Dental assistants were permitted to perform duties not allowed under state law • False insurance claims were filed on fabricated charts • AG says “these dentists put at risk the health and well being of hundreds of children and adults by performing slipshod dental services that were unnecessary, ignoring health problems that needed tending and even skimping on appropriate amounts of anesthesia before submitting patients to painful procedures.” Children were forcibly restrained. • Investigation was conducted by Bureau of Medi-Cal Fraud and Elder Abuse and assisted by the Department of Health Services

Dead men do tell tales! • In 2004, there were approximately 25 cases of dental fraud pending as a result of the forensic identification of the remains of those who were killed in the World Trade Center on September 11, 2001 • This was discovered when dental records provided to help identify remains were examined in conjunction with remains.

In the matter of the Bar Admission of Edward Littlejohn261 Wis.2d 183 (2003) • Don’t expect to become a licensed attorney in another state if you are suspended from the practice of dentistry for inadequate infection control, fraud, delivery of unnecessary dental services and practices beyond the scope of your dental license! • It didn’t work for Edward Littlejohn who was not able to satisfy a character and fitness investigation for the Bar after losing his dental license in Minnesota.

Healthcare Integrity and Protection Data Bank (HIPDB) History: The Health Insurance Portability and Accountability Act of 1996 mandated creation of HIPDB by the Secretary of the Department of Health and Human Services acting through the Office of the Inspector General. The legislation that set up HIPDB is Section 1128E of the Social Security Act Final regulations governing HIPDB are codified in the Federal Register at 45 CFR Part 61

Background for HIPDB • Cases like Miller v. Commonwealth and State v. Teo REALLY DO occur casting a pall over all of us in the dental profession • Health care fraud is involved in an estimated 3 to 10% of all health care expenditures and cost between $30 and $100 billion in 1997

CDS 238 “Ethical Situations and the Law”