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Legal Services

By Dan Schulte, J.D.
MDA Legal Counsel
From the March 2009 issue of the Journal

This month's column will deal with collection questions received recently — unfortunately, a sign of the times.

Question: I have a patient with a substantial balance. I have used a collection agency to attempt to collect this debt. I am told that the patient has left town and relocated in another state. Could I alert the police in this other jurisdiction and have the patient prosecuted for theft?

Answer: Most likely not. In order to successfully prosecute a patient for theft, larceny, etc., a prosecutor would have the burden of proving beyond a reasonable doubt that the patient never intended to pay for your services. This will be very difficult if not impossible to prove because, in most cases, the only evidence of the patient’s intent is the patient’s own testimony. 

The patient most likely will either swear that he had every intention of paying the bill but was not able to do so for reasons that were not apparent at the time the services were rendered. Or, the patient may refuse to testify at all (which is his or her right). If the patient refuses to testify, the prosecutor will be prohibited from arguing to a jury that the patient’s silence is evidence of guilt. 

In my experience representing dentists in your situation, the local police and prosecutor’s offices are very reluctant to get involved.  Most often, they view these as strictly as civil breach of contract matters. 

Question: More and more lately, patients are taking months to pay their bills. Can I assess late fees? What about a surcharge if they do not pay in full on the date of service? How about charging interest on outstanding balances?

Answer: Whether you can implement any of these policies it depends on the terms of your contracts with insurance companies and other payors.  These contracts often contain restrictions on your ability to collect any amount from a patient other than an approved fee, co-payment, deductible or other approved amounts. Such a contractual obligation would prevent you from charging a late fee, surcharge or interest. 

However, if the patient does not have dental insurance or other coverage provided by a dental plan, or his/her insurer or dental plan is not one you have contracted with, there is no statute which would prevent you from charging a late fee, surcharge or interest.

Question: I am a general dentist who provides orthodontic services. A new patient came in recently seeking a second opinion on orthodontic treatment. We requested copies of the patient’s records from the orthodontist she had previously seen. The orthodontist refused to provide copies of the records because the patient has a past-due balance and I am not a certified orthodontist. Are these valid reasons for not producing copies of dental records?

Answer: No. Michigan’s Medical Access Act gives patients the absolute right to receive a copy of their records. There is no exception for when the patient has a past-due account. No lien in favor of the dentist exists on dental records. You should ask the patient to make the request for the records directly. The patient will be expected to pay a fee for production of the copy of the record. The orthodontist may insist on this fee being paid in advance, but if paid must produce the copy.

There is no valid reason for not agreeing to send a copy of a patient’s records or simply transferring the records, for that matter, solely due to the fact that you are not a certified orthodontist. 

Dentists licensed in Michigan are legally able to provide all of the services included within the scope of dental practice, which includes specialty services. There simply is no justifiable reason for withholding copies of dental records on this basis.

Posted in: Billing Issues

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