Dental Malpractice : What You Should Know Before Refunding a Patient’s Money to Resolve a Dental Claim

  Despite your best efforts, there are always patients who will for some reason demand a refund, or payment for repair or revision of dental work you initially performed. When this occurs, there are several things you must do. It is always prudent to have the patient’s request in written form. That way, you will have a clear picture of exactly what the patient is requesting. If the patient’s request was verbal, you should politely ask the patient to submit his or her request in a letter, and to include the reasons why a refund or payment
is demanded. After receiving a written request, you should advise the patient that you will review and investigate the complaint, and give the patient a time frame within which he or she can expect a response (for example, two weeks). You should also contact the Dental Claims Unit of Medical Liability Mutual Insurance Company (MLMIC) to place MLMIC on notice that a claim has been made.

  Depending upon the nature of the claim and whether you wish to dispute it, there are some options. If the patient’s complaint is related to the quality of care you provided and you dispute the patient’s
claim, one option is to submit the claim to the New York State Dental Association (NYSDA) for Peer Review, if the patient agrees to participate in this process. You can learn more about Peer Review by contacting NYSDA at 800-255-2100. Alternatively, you may advise MLMIC that you wish to resolve the complaint yourself, without involving the formal claims process or NYSDA peer review. In that case, the attorneys at Fager & Amsler, L.L.P. (F&A) are available to assist you.

  If you choose to resolve the complaint by yourself, during your investigation of the complaint, you should determine who paid the fees for your services. If some or all of your fees were paid by an insurance company, you cannot return that money to the patient. Instead, any payment must be returned to the insurer.
If the patient was self-pay, then any amount he/she paid may legitimately be refunded. Sometimes, you are not asked to make a payment, but to write off an outstanding balance related to the patient’s care and treatment. If a payment for those services was made by an insurance company, you must be careful to
have a paper trail regarding the request and your decision.

  You should thoroughly review the patient’s dental records and decide whether the patient’s monetary request is reasonable. If you are willing to make the refund or other payment, send the patient a letter regarding your decision. The letter should include statements that contain the following information:

1) You have carefully investigated the patient’s complaint and reviewed all of the patient’s dental records.
2) After your review, you believe that the care you provided to the patient was reasonable and appropriate and well within the standard of care. If the patient’s complaint is based upon an actual injury, i.e. nerve damage, burn, or laceration, please contact F&A to assist with appropriate wording.
3) As a courtesy to the patient, because he/she is so unhappy with his/ her dental care, you will agree to accommodate his or her request. However, you must ask the patient to first sign a legal release of Liability.

  Your letter must explain in clear and simple language that, once the patient has signed the Release and receives payment, or the balance is written off, he/she has waived his/her rights to make any further claim against you involving this dental condition or event. (A sample letter is available from
F&A for this purpose.) If the patient agrees to sign a Release, an attorney from F&A can prepare the
Release for you. You must provide certain information for the release, including the patient’s name, and, if applicable, the spouse’s name; the amount of money to be paid or the amount of the balance to be written off, the name(s) of the dentist(s) and the name of the practice(s), including any partnership or corporate entities.

You must then mail two copies of the completed Release to the patient, along with a cover letter. The cover letter must include instructions for the patient to sign the Release before a notary public  and return the original release to you. Upon receipt of the signed and notarized Release, you may then remit payment or write off the balance of your fees. The Release must be retained for at least six years in your dental chart.

  Finally, if you have not already done so, you should consider whether you wish to formally discharge the patient from your dental practice. If a patient is unhappy with your care, it may not be in your best interests to continue a professional relationship with that patient. A memorandum and form letters for discharging patients can be obtained from F&A.