Posted and filed under Dental, Fraud, FWA, Medical Record Auditing.

Even more than money … what about the standard of care?

This week’s Fraud Spotlight features guest contributor Mark R. Brengelman, JD, MA. Be sure to tune into the column for more expert insights from our network of providers, investigators, and fraud experts.

This article points out another violation of law related to dental misconduct in addition to fraudulent billing and medical records forgery/lack of documentation.  This violation is from the disciplinary perspective of a state dental board which governs the license to practice dentistry which can be suspended or revoked.  Think here about fraud in more ways than simply financial action that has extended to record keeping and malpractice enforced by the board of dentistry.

Here are the two ways the standard of care can be breached in a fraudulent dental procedure billed by the dentist.  A dentist risks disciplinary sanctions for failure to adhere to the applicable standard of care for dental work:  1) that should have been done but was not, or; 2) in performing and billing for dental work that was not medically justified but was performed anyway.  Either fact pattern supports a failure to comply with the applicable standard of care.

Billing for the extraction of two teeth when only one tooth was extracted and then documenting two teeth were extracted is an additional record keeping violation.  A disciplinary action standard of care rule may be: “incompetence or negligence by a failure to meet the minimum standards of performance in diagnosis and treatment, when measured against the degree of care and skill which is expected of a reasonably competent dentist, acting in the same or similar circumstances, and of the same class to which the dentist belongs.” 

While strict incompetence may be very difficult to prove, mere negligence is an even easier standard in professional licensure law where the usual element of damages to the patient is not usually an element of proof.  So, giving the wrong medication to the patient is actionable negligence in a licensure disciplinary action even if it did not kill or harm the patient as would be necessary for a claim for money damages in a civil malpractice action against the health care practitioner before a jury.

Another more common standard of care violation when fraud is involved is when dental work is performed that did not need to be.  If a tooth is otherwise healthy in the absence of patient complaints or documented dental problems (such as would be found in a comprehensive oral examination and contemporaneous radiographs), it is not necessary to be extracted or restored with a root canal and crown therapy.  While such a restoration procedure may be successful, no root canal and crown are ever as good as a healthy tooth originally.  An overaggressive dentist commits fraud by performing and billing for unnecessary dental work.

A less common example of a standard of care violation when fraud is involved is when the dentist pulls a single tooth but bills for three teeth being extracted, when a careful, post-procedure review of the dental records and patient’s condition reveal that all three teeth should have been extracted in the first place.  The dentist is cutting corners and committing fraud by obtaining a fee for the extraction of all three teeth but in actually pulling only the one tooth.  Those remaining two teeth will cause problems for the patient sooner or later.  As such, failing to perform the full procedure when it was justified dentally to do so is a standard of care violation by a lazy or incompetent dentist who does only some of the work but bills for all of the work. 

Dental practitioners need to know how their billings are compared to their medical records and the actual clinical status of the patient and what dental procedures should or should not have been done based on the standard of care.  Performing unjustified work or failing to perform justified work is a standard of care issue in addition to fraud or misrepresentation in billing for it all.

About the Author

Mark R. Brengelman, JD, MA, practices health care law in Frankfort, Kentucky, where he is the immediate past Chair of the Health Law Section of the Kentucky Bar Association.  For fifteen years, he was the Assistant Attorney General assigned as General Counsel and Prosecuting Attorney to the Kentucky Board of Dentistry.  His e-mail is Mark@MarkRBrengelmanPLLC.attorney.