Case study – the personal cost of debt recovery

Jurisdiction

The dentist commenced proceedings against the patient in the Local Court (NSW) to recover his professional fee of $3,800.

The patient subsequently lodged a complaint against the dentist with the Dental Board of NSW (now known as the Dental Council of NSW) alleging poor quality advice and treatment.

Outcome

The dentist successfully recovered his professional fees from the patient.

The patient’s complaint against the dentist to the Dental Board was dismissed.

Law considered

Dental Practice Act 2001(NSW)

Health Practitioner Regulation National Law (NSW)

Facts

In September 2008 the patient attended the dentist for the first time. Assessment, including periapical radiographs, revealed that tooth 27 had a hopeless prognosis. Extraction was recommended. The tooth was extracted at that appointment.

The patient returned in mid-September and October 2008 at which time restorations were placed on teeth 12 and 36. Then in November 2008 the patient presented seeking advice about replacing the extracted tooth 27. Options were discussed including the placement of a bridge using 26 and 28 as abutments. It was a lengthy consultation and the patient said he would consider his options.

The patient returned in July 2009. There was another lengthy consultation about his options and the patient ultimately decided to proceed with the bridge. The dentist agreed to accept full payment at the time of issue. This was against his usual practice but he believed the patient would honour the agreement. On the day of issue in August 2009 the patient attended without payment. He said he would go to the bank to get a cheque at the end of the appointment. The patient did not present the cheque as promised.

The dentist (and his staff) attempted to communicate with the patient about payment (written and oral). The patient responded to the effect that when he was happy with the bridge, he would pay for it. The dentist offered to assess the bridge and solve any issues. The patient did not respond. The dentist threatened to commence legal proceedings. The patient did not respond.

The debt recovery proceedings

In September 2009 the dentist commenced proceedings against the patient in the Local Court to recover his professional fees of $3,800. In October 2009 the patient filed a defence denying that he owed the money and asserting that the dental work was unnecessary and performed negligently. The patient also filed a cross claim alleging negligence and seeking damages against the dentist of $59,500.

Then in December 2009 the dentist received a letter from a law firm acting for the patient. The solicitor requested a copy of the dentist’s clinical file. He complied with that request.

The cross claim was dismissed by the court in February 2010. The dentist was ultimately successful in obtaining a judgment against the patient in July 2010. However, the patient then took steps to try and have the judgment set aside. Those actions were unsuccessful. Whilst the dentist did ultimately recover his fee of $3,800, it took over two years to do so. He and his staff had to attend the Local Court on numerous occasions and prepare many court documents and statements.

The Dental Board complaint

In March 2010 (that is, after the cross claim had been dismissed but before the claim by the dentist had been determined by the Local Court) the patient lodged a complaint against the dentist with the Dental Board of NSW (this entity became known as the Dental Council of NSW on 1 July 2010). The patient complained that tooth 27 should not have been extracted in the first place. The patient complained about the quality of the bridge issued by the dentist.

The Dental Council referred the complaint to the Dental Care Assessment Committee. That Committee recommended that the dentist be ordered to refund the patient the $3,800. The Committee was not satisfied that the notes and radiographs taken in September 2008 supported the extraction of the tooth 27. The Committee queried whether the wrong tooth was extracted. The Committee felt that the bridge should not have been issued in the presence of pain.

Not surprisingly the dentist was aghast. He identified factual errors in the report of the Committee. He was satisfied the radiology did support his decision to extract the tooth – it showed clear and extensive bone loss associated with tooth 27. He denied the patient complained of any pain at the time the bridge was issued.

He sent a submission to the Council to the effect that it should not follow the recommendation of the Committee. He carefully dissected the report of the Committee and explained the steps that he took to assess tooth 27: he took three periapical radiographs in conjunction with mobility, percussion, probing and air sensitivity testing. The problem for the dentist was that not all those important assessment tests were recorded in his clinical record.

The Dental Council ultimately decided to deal with the complaint by Inquiry at a meeting of the Council. The Council was concerned that there was no evidence in the clinical record that the patient’s oral health had been checked before the provision of the bridge. The focus was going to be on the record keeping of the dentist.

The Inquiry took place in April 2012. By that time the dentist had provided six written submissions to the Council. He had spent days of time preparing documents and submissions.

The dentist presented extremely well at the Inquiry. He was well prepared and showed great insight. He essentially submitted that his treatment planning and execution was appropriate and that his only downfall was not recording his findings adequately in his clinical record. He held firm to his position that he should not have to refund his fees (which he had only recently recovered). The members of the Council queried many aspects of the treatment planning and assessment and all questions were answered by the dentist in a frank and professional manner. The dentist explained the changes he had made to the manner in which he records his findings in the clinical record and in particular, his periodontal findings. The dentist assured the Council that he had read the Dental Board of Australia’s Guideline on Dental Records issued 1 July 2010.

The Dental Council resolved to dismiss the complaint. In doing so it provided advice to the dentist about the importance of maintaining clinical records which comply with the Guideline.

Comment

The dentist ultimately recovered his professional fees and successfully defended a complaint to his professional board. Unfortunately it took him many years to do so. He lost valuable time preparing court documents and Dental Council submissions. He had to attend the Local Court on a number of occasions (and pay a lawyer on some other occasions) and had to attend the Dental Council Inquiry.  The value of the time spent recovering his professional fee far outweighed the actual fee of $3,800.

At the Dental Council Inquiry in April 2012 the dentist was asked what he had learnt from the process. He provided a very insightful response in which he stated that “sometimes you need to let go and not pursue some accounts”.

If you decide to pursue a patient for outstanding professional fees you must enter that process with your eyes wide open and accept that the road ahead may be rocky.


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