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Case study – recovery of outstanding fees and lessons learned

A dentist provided treatment to a patient in the form of extensive fixed porcelain bridge work. The patient paid interim invoices rendered during the course of the treatment. The patient failed to pay the final invoice of $5,200 expressing that she believed that she had already paid for the cost of the treatment.

The patient alleges that she attempted to contact the dentist but was told that he was not prepared to see her for a review appointment until the outstanding invoice was paid. The dentist maintained that the cost of treatment was set out in verbal quotations provided, and which had been revised following changes to the plan for treatment.

After some time, the dentist issued proceedings against the patient seeking to recover the unpaid fee.

The patient filed a Defence denying that her informed consent for the treatment and its cost was obtained. The patient made a counter-claim alleging poor quality workmanship. In particular, the patient alleged that the agreement was entirely oral, that the porcelain bridge was a poor colour match for her lower teeth and that there were inadequacies in the size, positioning, form and texture of the bridge. The patient sought damages to rectify the alleged sub-standard bridge work and for personal injury, in the amount of $30,000.

The dentist denied the allegations of poor workmanship.

Of note is the fact that the patient and dentist had a good relationship prior to the dispute over fees. The dentist maintains that the patient had not expressed any concern with the appearance of the bridge following its insertion. Certainly, the patient’s initial written complaint to the dentist did not express dissatisfaction with the treatment, but merely confusion in relation to the amount outstanding.

The dentist is now in the unfortunate position of having to defend a professional negligence claim in relation to his treatment and the possibility of a damages award against him, well in excess of the amount he sought to recover. There is also the potential for a complaint to the Disciplinary Board.

What can we learn from this case?

It is inevitable that dentists will have to deal with the circumstance of a patient refusing to pay fees for treatment rendered. We recommend that before issuing proceedings to recover outstanding debts or placing outstanding accounts in the hands of debt recovery agents, that practitioners first make direct contact with the patient.

If a dispute in relation to fees arises, it is important that before issuing proceedings, the practitioner first ascertains from the patient the basis for their objection and specifically, whether it arises from any concern about the standard of treatment performed.

If the patient does cite dissatisfaction with the treatment, then we suggest that a practitioner arrange to meet with the patient for a review appointment to try and work through the patient’s concerns.

If the matter cannot be sorted out directly with the patient, a practitioner could give consideration to sending the patient for a second opinion regarding the adequacy of the treatment. That way, if concerns are well founded, attempts can be made to resolve the claim taking into account the fees outstanding and without resort to the stress of litigation.

It is important that practitioners ensure that each patient is provided with a written costs agreement at the outset of the treatment, and that this agreement clearly outlines the plan for treatment as well as the estimated cost of the treatment. That way, if a dispute arises, the patient can be referred back to the agreement which forms part of the contractual arrangement. It is recommended that practitioners insist on patients signing the agreement as evidence of their consent and as evidence of their acknowledgement of the terms of payment that are set out in the agreement.

If further treatment that was not initially anticipated is required, it is recommended that the patient is provided with a written, revised agreement and that practitioners obtain the patient’s further written consent to the treatment prior to undertaking any additional work.

If instalment payments are contemplated, it is recommended that the costs agreement clearly sets out the amount of each and every instalment and the trigger for payment (eg. following the insertion of fixed appliances). The agreement should set out the terms of payment (eg. payment within 14 days). The agreement should set out the consequences if payment is not made within the time allowed (eg. whether interest is proposed to be charged and, if so, at what rate and on what amount).

It is evitable that some complaints cannot be resolved despite the best efforts of the dentist concerned however, by ensuring the terms of the arrangement with the patient is in writing and is clear, practitioners will be better placed to resolve any fee dispute that may arise.

 

Kellie Dell’Oro
Principal, Meridian Lawyers

Sarah McPherson
Solicitor, Meridian Lawyers

Private health fund audits

Reading relevant articles can count towards your required continuing professional development hours.  Therefore, reading the article below may assist you to achieve these required hours. (see more below)

Practitioners can be subjected to an audit of their billing practices by a private health fund. This article explains what can trigger an audit; answers some frequently asked questions; identifies some common billing issues that Meridian Lawyers has observed; and provides some hints and tips to practitioners seeking to avoid common pitfalls.

How are audits commenced?

What triggers an audit?  

Audits are typically triggered as a consequence of the practitioner (provider) having a high servicing ratio relative to their peers in their state and postcode.   It is important to remember that each of the private health funds collects data, and turn that data into statistical models that identify billing trends across the industry. The funds collect data on individual provider’s billing and patterns and compare these levels to industry “norms”.

A provider’s servicing profile has been explained by one of the private health funds, as being made of up the following:

  • Service and Benefit ratios per patient
  • Service and Benefit level ratios per membership
  • Service and Benefit level comparison ratios for the provider’s State and Postcode
  • Age Group Service comparison ratios for the provider’s State
  • Item Category Service comparison ratios for the provider’s State

A high servicing ratio may often trigger a letter to the provider seeking an explanation, which is generally followed by a second letter informing the provider that an audit is to occur. Typically, a provider who has been identified as having a high service ratio, can expect the following line of correspondence from a private health fund:

Letter 1 : Provider advised of high servicing profile and asked to provide an explanation

                                                                             

Letter 2 : Provider advised that private health fund has decided to conduct an audit of the practice. Private health fund will seek access to the clinical records of specific patients over a specific period of time.

                                                                              

Letter 3 : Provider will be advised of audit’s findings. Provider will be provided an opportunity to respond to the audit findings.

                                                                              

Letter 4 : Provider will be advised of the private health fund’s decision. The provider will be informed as to whether the private health fund will take action.

FAQs

What power does the private health fund have to audit my practice?

The relationship between a provider and a private health fund is contractual in nature. As such, the power of a private health fund to perform an audit will be created by the terms of the contract. Generally speaking, these contracts contain a clause requiring the provider to co-operate with any request for documents. A failure to perform an obligation under such a contract, may give the private health fund the right to suspend that provider’s billing privileges, and ultimately, end its relationship with the provider.

Will I breach patient privacy if I provide the private health fund a copy of my clinical records?

Previously, this has been an issue faced by providers. However, most patients will have now consented to such a disclosure when becoming a member with the private health fund. Before providing a copy of any clinical records, it is prudent to request a copy of the patient’s consent or at least, written confirmation from the private health fund that this has been obtained.   We note that some funds provide this information at the time of a request for clinical records. We recommend seeking legal assistance to draft an appropriate first response to such a request.

What can the private health fund really do if I do not cooperate/respond in a timely manner?

Most private health funds reserve the right to suspend billing privileges or end the relationship with the provider, should there be a failure to respond by the nominated date. It is extremely important to keep this in mind if correspondence is received from a private health fund. We are aware of private health funds suspending the provider’s billing facility until a response is received.

What are the possible outcomes of an audit?

The contract between the private health fund and the provider generally reserves the right of the private health fund to end its relationship with that provider, if a serious breach has occurred.   It is important to remember that when an item number is billed to a private health fund, it is a representation that the service has been appropriately provided. Consequently, audits that uncover item numbers that have been inappropriately billed, albeit unintentionally, could result in termination of the relationship with the provider.

Private health funds may also reserve the right to require the provider to fix the breach, if possible. For item numbers that have been billed incorrectly, this generally means paying back to the private health fund the billed amounts. This is called restitution. Be warned that if a billing trend for a particular item number is uncovered by an audit, the private health fund very often seeks full restitution for all times that item number has been billed, even beyond the sample of audited files.

We note that should a provider’s status as a provider be terminated, as a consequence of an audit, the provider may have an obligation to notify AHPRA of the event. Depending on the circumstances, this may also be the case should a provider’s billing privileges be suspended during an audit. We recommend that a provider seek legal advice should either of these events transpire.

Frequent issues

Audits by private health funds generally focus on the following three issues:

  • Was the treatment in fact provided?
  • Was the treatment provided warranted?
  • Was the item number appropriately used?

The potential to defend these types of allegations depends almost entirely on the quality of and the detail in the provider’s notes. The provider, in answer to these issues, will need to look to the following:

  • Is there a record of the treatment that is the subject of the claim?
  • Does the record of the history and examination findings, including the conclusions from any radiology/intraoral photographs justify the treatment that was provided?
  • Is the recorded treatment within the scope of the claimed item number?

 

Audits frequently target the use of the following item numbers:

Item 011                      which provides for a comprehensive oral examination.   The funds have taken issue with clinical records that do not support a comprehensive oral examination having been completed.

Item 013                      which provides for a limited oral examination. The funds have taken issue with providers who bill this item number in conjunction with planned treatment.

Item 015                      which provides for an extended consultation of 30 minutes or more. The funds have taken issue where this item is being used for every first consultation; or routinely where there does not appear to be any clinical justification for doing so. Where there is complex treatment proposed, and the provider is required to explain the treatment plan in detail, including the risks and benefits, and the outcomes, such circumstances may justify the use of this item. However the provider must ensure that this necessity is detailed in their notes. A simple consultation is unlikely to justify the use of this item.

Item 022                      which provides for intraoral periapical or bitewing radiograph per exposure. Providers need to ensure that radiographs that are being claimed under this item are actually able to assist in clinical diagnosis.   Audits have identified instances where radiographs of poor and unusable quality have been claimed inappropriately. It is important that providers retain all radiographs and document the findings/conclusions from these radiographs in the patient’s clinical file.

Item 122                      which provides for home application topical remineralising and/or cariostatic agents. This item requires that the patient is provided with a custom-made tray. Audits commonly identify the inappropriate use of this item where providers are simply providing the patient with an over the counter tray.

Item 123                      which provides for concentrated remineralising and/or cariostatic agents. This item cannot be used where restorative treatment of the same tooth/teeth is also provided. We note that this item may be used for the prolonged and targeted application of concentrated fluoride where it is a procedure to promote caries resistance in a specific situation. Audits have focused on the incorrect use of this item for fluoride treatment or for the issuing of tooth mousse, particularly in circumstances where there are no clinical records to justify such treatment. It is not appropriate to claim item 123 where a desensitising agent is applied.

Restoration items       The funds have focused on providers that claim for restorative items on the same tooth over a relatively short period of time. They maintain the position that this may indicate an issue with the quality of the workmanship, and believe it should be a cost borne by the provider. We recommend that providers think carefully when engaging in this practice. If the replacement restoration is not because of workmanship, the reasons for the treatment should be detailed in the patient’s clinical notes.

We understand that providers rely heavily on their administrative staff when it comes to billing.   We have observed that some of the item numbers disputed by the funds have arisen because the administrative assistant entered the incorrect item number; or the administrative assistant billed and then cancelled an item number in order to quote a service to the patient. These entries form part of a provider’s servicing profile, thereby adding to the provider’s servicing ratio.   Providers should ensure staff are trained on how to use the billing systems properly and what is and is not acceptable.

Auditors regularly seek explanation for pre-claiming, back dating or splitting claims over the calendar/benefits year.

Hints and tips

Practitioners need to be mindful of the potential for audits to be conducted by the private health funds. Meridian Lawyers’ recommends that practitioners:

  • Ensure complete and accurate clinical records are retained
  • Ensure administrative staff are educated regarding appropriate billing practices
  • Ensure they are familiar with the ADA Schedule of Dental Services and Glossary, and that their treatment accords with accepted practice
  • Ensure that any clinical records provided to a private health fund are:
  • Complete; and
  • Good quality copies (if the x-rays are digital, we recommend providing a CD/DVD containing the digital image)
  • It is strongly recommended that any practitioner contact their professional indemnity insurer for assistance, if correspondence from a private health fund regarding an alleged high servicing ratio is received.

Detailed clinical records enable a provider to respond to an audit request, or demand by a private health fund with:

  • a contemporaneous record of the treatment, which accords with the item description; and
  • a contemporaneous record of the clinical justification of the treatment.

Without detailed notes, whether the treatment was provided, whether it was appropriate, and whether it was within the item number claimed, are open to dispute.

 

This article was prepared by Jeremy Smith, Solicitor; Marnie O’Brien, Solicitor and Kellie Dell’Oro, Principal of Meridian Lawyers.

Guarantees, warranties and changes to Australian Consumer Law – what dentists need to consider

The GIL Dentists Liabilities Insurance Policy states in General Exclusions:

  1. This Policy does not Cover and We will not be liable for any loss, damage or liability whatsoever, or cost or expense of whatsoever nature, directly or indirectly occasioned by, happening through, arising out of, resulting from, in consequence of, in connection with: ….

Performance Representations, Warranties or Guarantees….any Claim which is based, in whole or in part, upon allegations of breach of written representations as to warranties or guarantees made by You as to the anticipated outcome of dental treatment provided by You.

However the Policy does Cover:

Goods Sold and Advice on Goods Sold…arising from Bodily injury or damage to property resulting from:

  • The nature, condition or quality of any Goods sold or supplied by You; or
  • Faulty or inadequate advice given by You in the course of a sale or supply of Goods by You in the conduct of Your Dental Practice.

An example of this is provision of a home bleaching kit.

Although patients may ask questions and be answered at the time, the suggestion of a guarantee being given verbally and used as a basis for complaint later, also exposes a dental practitioner to liability. Many dental practitioners are faced with patients asking for a “guarantee” for any work they provide. It is a difficult concept for patients to grasp that health care and services are not always straight forward and many variables contribute to the outcome of treatment, which can range from success to less than expected satisfaction, complications or misadventures. Often a patient perceives dental care as a service or a “fix’ and expects it to be covered like any other goods, with a guaranteed outcome.

The best way for dental practitioners to minimise their exposure to risk of complaint is by ensuring patients have full informed consent, and professional standards of record keeping are maintained. However, the common questions of “how long the crown can be guaranteed?” or “how likely is this treatment to work?” are often posed and need to be realistically addressed.

If a practitioner is delivering evidence based treatment then they have some basis on which to advise a patient of the likelihood of certain complications occurring. But a practitioner who gives a patient a guarantee that a treatment will have a positive outcome or last for a designated length of time is opening themselves up to potential liability in a number of ways which in the end may be borne at great personal expense.

Providing general information about risks etc based on published data is acceptable, but practitioners should never offer warranties or guarantees on their clinical work.

With respect to provision or sale of goods, on 1 January 2012 a new law came into force regulating consumer product warranties. This replaced the definition of warranties in consumer contracts under the old Trade Practices Act.

Are your warranties compliant?

From 1 January 2012 giving a consumer any document containing a warranty against defects in connection with the supply of goods or services has been prohibited if the warranty does not comply with regulation 90 of the Competition and Consumer Regulations 2010 (Commonwealth). It is also prohibited to represent to a consumer that a warranty against defects applies to goods or services unless that warranty complies with regulation 90.

This means that all businesses issuing any documents that include warranties against defects must act now to ensure that they don’t sell goods containing any non-complying warranties from 1 January 2012.

What is a warranty against defects?

A warranty against defects is defined as:

“A ‘warranty against defects’ in connection with the supply of goods or services, at or about the time of supply, which suggests to a consumer that a person will:

  1. repair or replace the goods or part of them; or
  2. provide again or rectify the services or part of them; or
  3. wholly or partly recompense the consumer;

If the goods or services or part of them are defective, and includes any document by which such a representation is evidenced.”

If a supplier or manufacturer gives a warranty referring to the quality or fitness of their goods such as ‘Lifetime warranty’ or ‘1 year warranty’, the supplier or manufacturer usually undertakes to repair or replace the goods, supply defective services again or otherwise recompense the end purchaser. These warranty statements will need to comply with the new requirements from 1 January 2012.

By law, warranties for goods supplied must now include word for word the following:

“Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”

If as a dental practitioner you supply goods then you will need to consider the following:

  • Amend your consumer product warranty documents to include the above statement and to comply with a number of other specific requirements.
  • If your trading terms still refer to the Trade Practices Act, they need to be updated.
  • In certain circumstances, it is possible to cap your liability for a failure to meet a consumer guarantee by limiting the remedy available to “repair or replace”.

What is a “consumer”

These requirements only apply where a warranty against defects is provided to a consumer. A person or a company will be considered a ‘consumer’ if they purchase:

  1. goods or services that cost less than $40,000 (no matter for what purpose); or
  2. goods or services that cost more than $40,000 but are of a kind ordinarily acquired for domestic, household or personal use or consumption; or
  3. A vehicle or trailer primarily used to transport goods on public roads.

Penalties

Any supplier or manufacturer found to be supplying goods that have non-complying warranty statements after 1 January 2012 will have no defence for breaching these requirements.

Failure to comply with the requirements from 1 January 2012 may result in penalties up to $50,000 per offence for corporations and $10,000 per offence for individuals.

Transitional arrangements

The ACL regulators have indicated they are unlikely to take enforcement action until September 2012 against retailers, manufacturers, suppliers for any stock in the supply chain manufactured and packaged prior to 1 November 2011.

In summary, a dentist is covered under the GIL Policy with respect to warranties or guarantees, for Goods Sold, but not for treatment provided. Advice from the ADAVB Community Relations team is

  • that a dentist should never give a guarantee for dental treatment because the patient may then have a basis to mount a large claim against the dentist, which will incur legal fees and possible statutory investigations which are not covered under an indemnity policy. In the end it costs the practitioner time and money to try to defend such a case, with a probable outcome going against the dentist.
  • Amend any documents you may provide with goods supplied as stated above.

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.

Case study – the cost of tripping hazards in your practice

Jurisdiction

The patient commenced proceedings against the dentist in the District Court of NSW alleging negligence.

Outcome

The claim was settled.

Law considered

Civil Liability Act 2002 (NSW) – sections 5B, 5C, 5F, 5G and 5H

Facts

The woman attended the dental practice in NSW to enquire about making an appointment. Upon leaving the practice, her foot became entangled in a cord hanging from some window blinds. The cord was lying in the reception area and strewn across the means of egress. The woman sustained injuries to her nose, neck, shoulder and ankle as a result of her fall.

Evidence and issues considered

  1. Was the dentist liable for the fall?

As the occupier of the practice premises, the dentist had a legal duty to take reasonable care for those entering and exiting his premises. This duty included ensuring that the entry/exit to the practice was clear of tripping hazards. The fall was witnessed by an employed dental nurse who confirmed that the women had tripped and fallen after her foot became caught in the blind cord.

Applying the law, a court would consider the foreseeability and severity of the risk posed by the blind cord together with what reasonable steps were open to the dentist to guard against this risk. The cord created a risk of serious injury. Tying the cord up off the floor was a simple and reasonable step the dentist could have taken to prevent this risk. In these circumstances, the dentist was liable for the fall and subsequent injuries.

In reaching a decision to settle the claim, consideration was given to whether it could be argued that the blind cord on the floor represented an obvious risk. If it was an obvious risk, then the law presumes the woman to be aware of that risk. Having regard to all the circumstances we formed the view that the dentist would have difficulty establishing that the tripping hazard was obvious. Consideration was also given to whether it could be argued that the woman contributed to the incident by failing to keep a proper look out. Ultimately, the settlement reflected a compromise that took into account the available defences.

  1. What injuries and damage did the woman suffer as a result of her fall?

Medical evidence confirmed that the woman sustained soft tissue injury to her nose, left ankle and right shoulder. There was no evidence of any fractures or breaks. The soft tissue swelling to the nose resolved and with time so too did the injury to the left ankle but the woman had ongoing pain and restriction of movement in her right shoulder. Future treatment was recommended but there was evidence to suggest that her prognosis was guarded. As a result of her injuries she required assistance with some domestic tasks, and was likely to require such assistance into the future.

The woman was entitled to compensation for the injuries and damage she suffered as a result of her fall. The woman initially sought compensation of around $400,000. The claim ultimately settled for a small fraction of that amount and it was not necessary for the dentist to attend court.

Comment

If you are the occupier of premises, you owe a duty of care to those on your premises. This necessarily includes a duty to provide a safe means of entry and exit. You must take reasonable steps to minimise any foreseeable risks of injury to those who enter your practice. Failure to do so may result in injury for which you could be held legally responsible.

New Government schemes and your Medicare provider number – guard it well

Once upon a time we graduated, applied for and received a Provider Number from the Department of Health and Ageing. This number is specific to a location and any dental practitioner working in multiple locations requires a number for each one. For many dentists once received there is no further thought about the number, its intention or its potential for abuse and in most cases it travels along in our practicing lives as a silent partner.

In recent years there have been some alarming developments resulting in misuse or appropriation of provider numbers. The rationale of the provider number is so that practitioners can access Medicare (MCA) funding, which for many years this was limited, in the case of dental practitioners, to accessing radiographic services and a few other ancillary medical services. MCA has also restricted the use of item numbers for many services to specialist groups (such as CBCTs).

Recent challenges have emerged with the introduction of government schemes: the one most prominent in our minds being the CDDS and the problems faced by a profession not provided with adequate education or briefing by MCA, nor used to working with a government funded scheme and its inherent red tape. It has been estimated that over 10,000 dentists provided treatment under the CDDS scheme and a great number of those were unwittingly non-compliant with Section 10. Guild Insurance worked exhaustively with the ADA branches and Meridian Lawyers to lobby, advise and appeal to MCA in an effort to assist all members who had audits and by inference, all vast number who carried a liability for non-compliance of paperwork.

It was during this time that as practitioners we became aware of the value of our provider numbers: it was the first time that the majority of dentists had accessed public funds. It also brought to light some examples of misuse of the numbers in certain cases.

One unfortunate case had a group of volunteers in a remote indigenous community providing services and allowing the managers of the centre to bill for services: once they had done their time (usually a week) they moved off and left the mangers to it: however it transpired that the paperwork was not submitted correctly which, in MCA eyes meant that the dentists were fair game for prosecution. In some ways if this case had have made it to the papers with all the buzz words (volunteer, indigenous remote, service access) it may have engendered some sympathy for dentists after all the negative press we had received. However, after due consideration and representation by Meridian Lawyers on behalf of these members, MCA agreed to waive the investigation – possibly they also considered the bad press for them!

Unfortunately other changes in the landscape of our professional lives are having an impact. Some ADA branches have become aware of employees being pressured to act unprofessionally (over servicing), and of employees being held accountable for decisions made by employers particularly where the practice owner or corporation processes all paperwork and the employee “loses sight” of what is being processed or claimed under his or her provider number. In the eyes of Medicare each practitioner is responsible to ensure that their number is used correctly and that no activity occurs that could be construed as inappropriate (meaning fraudulent) If you feel that you are potentially the subject of such abuse of the mandatory notification provisions of the National Law, please contact your ADA Branch immediately to discuss what you should do.

We also have new government schemes either just introduced or on the horizon and we are all feeling a bit battle weary after the CDDS experience. Not only should members ensure that they understand the terms and requirements of any new scheme (including limitation of services) but they should ensure that they have control over the provider number as the liability engendered by its misuse rests with the owner of the number, not the practice.

Please refer to newsletters, alerts and websites of your branch ADA office for fact sheet and guidance when the new schemes are introduced, or contact the professional advisors/consultants with any concerns you may have. Guild and the state branches are fully prepared once details have been confirmed, to make sure that members have the information available to ensure compliance and thus practice safely and avoid liability. Please make sure you are fully briefed before entering into any government scheme so that lessons learnt are not mistakes repeated.

 

Dr Eryn Agnew
Community Relations Manager/Professional Consultant
(ADAVB)