Guest column: Dental Legal Issues

Is Fraud like Beauty, in the eye of the beholder?

By Dr. Barry Levy, DDS

In a case filed last year, a dentist has been criminally charged with fraud, because the dentist diagnosed decay in two teeth, using clinical skills and a DIAGNOdent (a fluorescent laser method for early caries diagnosis), decay which another dentist decided did not exist. What makes this interesting is that a difference of opinion wound up in a criminal court, when it should have been policed by the profession and been an issue for a review of diagnostic procedures.

The case is interesting because the terms that are being adapted for fraud may be much different from what one expects and can impact on how you practice dentistry. The Ohio Bar Association discussed the fraud issue in an article that they released. They cite examples of fraud that we can easily understand such as double billing, unbundling and changing the dates of services. These issues are objective and easily understood.

But other examples are ambiguous and subjective. Therein lies the problem. Fraud is being defined as excessive treatment, faulty treatment and billing for services that you didn’t actually provide, but were done by others in your office.

So if your philosophy is an aggressive approach to treatment, and not a watch and wait approach, what do you do if your treatment is challenged by a person with a different treatment philosophy? Are you wrong, or is the other person wrong? Are we saying this should be a criminal matter, or a board matter?

I see more and more dentists that are using magnification and video imaging. Suppose your treatment is reviewed by somebody that doesn’t use magnification. Is this a concern, especially when the stakes are so high to you? They are so high, because a fraud case is not a civil board action, but becomes a criminal matter, where malpractice insurance won’t cover the defense and the terms of bail may be that you can’t practice. Is it possible that somebody with a grudge could be biased against you if they had to review your diagnosis?

We will all agree that if you bill for a filling that wasn’t done, it is a fraud. But what would you think of fraud allegations being levied if you bill for treatment done by somebody else in your office? This has already happened in courts. The extent to which lawyers ignored how a dental business is run was staggering. As was the attempt to arrest the staff that did the billing and charging them as co-conspirators. Do you think that a staff person might be turned to testify against you to protect themselves? If you said yes, you would probably be correct.

The scary part is that in these cases, when I would have thought the profession would be a strong advocate for these assaults on the profession and on a colleague, they were strangely quiet. The approach seemed to be a wait and watch. Not exactly what you would want to hear if you were the one caught in the cross hairs of this type of prosecution.

I have two final comments for your review. First, when we have been too busy or unaware of these issues, which can have a profound effect on how we practice, we have created a vacuum that others have rushed to fill. Usually those rushing to fill that vacuum, such as trial lawyers or legislatures, do not have our best interest at heart. Second, having subjective differences of opinion is something that should trouble all of us.

It has often been said that some of the things that I speak about or write about can’t happen. But when I can cite one example that did happen, then that problem can occur again. In an ideal situation I would like to see the dental profession be proactive to change these situations so that they can’t happen again. Short of that, I like to give a heads up to problems so that others can, perhaps, avoid them. It is so much easier to step over the mud, than to try and clean up after stepping into the mud.

Dr. Levy has served as an expert on several cases, and is on the California Board of Dental Examiners panel of expert witnesses to assist in investigations

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