Monday, September 01, 1997
by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the September 1997 issue of the Journal
Question: I am a dentist who rendered treatment to a patient over six years ago. I did not bill the patient at the time of treatment. Can I bill the patient now to collect payment?
Answer: Although no law would preclude billing the patient at this time, the question is whether or not the patient has a defense based upon the statute of limitations. Generally, the statute of limitations for collecting an unpaid bill is six years from the time the bill became delinquent.
Since no bill was sent, there is some uncertainty as to when the bill became delinquent, or, to put it in the legal perspective, the payment contract was breached. If a claim is within six years from the date the debt became due, which typically would be 30 days from the date the services are rendered, the statute of limitations may not have expired. Even if the statute of limitations has expired, however, it is an affirmative defense which must be timely raised by the defendant in a lawsuit or it is waived.
Question: I am a dentist who treated a patient involved in an auto accident in 1993. I collected payment from one insurance company in 1993, but I never billed the auto insurance company. May I now bill the patient or auto insurance company to collect payment for the treatment rendered in 1993?
Answer: Again, there is no law precluding the bill. Whether the law would preclude collection is the real issue. There does not appear to be a statute of limitations problem. Some insurance carriers have contractual limitation provisions which require bills to be submitted within a certain time frame, which is much shorter than the six-year statute of limitations with respect to contract actions. Such a contractual limitation period built into an insurance contract or participation agreement could preclude recovery.
Typically, there is a coordination of benefits issue involved when two insurance companies may provide coverage. The law in Michigan provides that health care insurers are primary over automobile insurers where there are appropriate coordination of benefits provisions. There may also be issues as to whether the ERISA preemption doctrine might apply and whether the participating provider contract precludes balance billing.
For example, Michigan case law holds that a Blue Cross Blue Shield of Michigan participating provider may not balance bill either the patient or a secondary no-fault automobile insurance carrier for services covered by BCBS.
Your question does not include sufficient facts to determine whether you would be legally successful in collecting against the patient or auto insurance company.
Question: I have been told that many malpractice cases arise out of fee disputes. I have further been told that filing a suit to collect a fee often results in a counter-claim for malpractice. Does this mean that dentists should never file suits to collect fees?
Answer: The statute of limitations for a malpractice claim is two years from the date of the last treatment, or six months from the date of discovery, whichever is later. With respect to minors, the statute of limitations is longer. A person eight years of age or less must commence a malpractice action on or before that person's 10th birthday.
The statute of limitations for collecting a debt is six years. If there is a concern that a malpractice counterclaim may be generated by a suit for collection of a fee, it is wise to wait until the applicable statute of limitations has expired, which would generally give the dentist an additional four years to pursue collection of the debt, except with respect to minors.