Baseless Lawsuit Against Dentist Thrown Out of Court

An apparently disgruntled patient of a dentist in Nova Scotia recently had her lawsuit thrown out of court even before she could have it heard by a judge.

Put Yourself in Their Shoes

Picture this: you treat an emergency patient who comes into your practice complaining of pain.  You do two fillings and smooth one of them out in a subsequent appointment. On the day of the last appointment, the patient’s husband comes into the office and verbally berates your staff due to your Fee Guide prices; so you tell the patient his husband is no longer welcome at the practice.

What does the patient say in reply? “I’ll sue you!”

New Case From Nova Scotia

As we regularly tell dentists: you can’t stop someone from suing you.  But at the same time, we also tell dentists: just because someone sues you doesn’t mean they will win.

A dentist in Nova Scotia recently had to go through what I’m sure was an unpleasant experience with a walk-in patient.

In the end, the dentist was fully vindicated.

In the case of Polishchuk v. Southgate Dentistry, 2018 NSSC 267 released on October 23, 2018, the dentist in Nova Scotia asked the court to look at the patient’s lawsuit and throw it out even before hearing all of the arguments.  The dentist asked for a mini-trial (called a summary judgment motion) because the patient’s lawsuit was so baseless, so “out-there” and so lacking of any merit that any reasonable person could see that it should be thrown out of court.

And that’s exactly what happened.

The Facts

The case arose from a visit to Southgate Dentistry by the patient, Ms. Polishchuk, on September 14, 2016. The patient was brand new and was complaining of discomfort.  After an examination, the dentist determined the patient required several fillings.  The patient came back two days later and had the fillings done, and then came back a week later to have one filling smoothed.

But the day before the smoothing appointment, the patient’s husband went to the dental practice and made statements that the dental team interpreted as threatening, aggressive and disrespectful.

After the filling was smoothed for the patient, the dentist (rightfully) told the patient that her husband would not be welcome back at the clinic (side note: this was probably a good idea for the dentist to do, since that dentist has a responsibility to protect her employees from harassment!)

That’s when the problems started. The patient then accused the dentist of overcharging her for the fillings and said she would be suing the dentist and the clinic.

I had a nice chat with the lawyer who represented the dentist and he confirmed for me that the dentist treated the patient in the same way she would treat any other patient, in terms of billing, dental work, etc.

The Court Decision

The patient followed through on her threat and sued the dentist (without using a lawyer) for the following:

“Professional Misconduct:

1. Charging a fee for services not performed.
2. Charging a fee that is excessive in relation to the services performed.
3. Failing to itemize an account for services if requested to do so by the patient.
4. Failing to issue a statement or receipt for fee for services to a patient.
5. Failing to properly inform the patient of the full and accurate estimate of the total costs involved.
6. Inappropriate comments or questions reflecting a lack of respect for patient’s dignity or privacy.
7. Verbal abuse of a patient or of a patient’s family in the dentist-patient context.
8. Making a misrepresentation respecting a treatment.
9. Professional incompetence.”

The patient also asked the court for the following remedies:

“–judgment for unliquidated damages for $8,500 CAD (eight thousand five hundred)

 –judgment for special damages in the amount of $1,170 + interest”

The dentist received the lawsuit and then asked the court to have a mini-trial (motion for summary judgment) so that the court could see that the lawsuit was bogus.

Justice Jamie Campbell heard the case and only needed five (5) days to come to a decision to throw out the lawsuit.  He carefully examined all of the patient’s legal issues and decided that none of them were good enough to legally decide.

For the following claims, the judge said the patient did not outline a valid legal dispute (meaning the patient couldn’t even sue the dentist even if the issues were true):

• Failing to Provide an Itemized Account
  • The dentist actually did provide it!
• Failing to Provide an Estimate of Fees
  • The dentist agreed that she did not provide an estimate, but the judge said that you can’t sue a dentist for this.
• Inappropriate Comments and Questions
  • The patient tried telling the judge that the dentist made some sort of comment about doing some crowns on her front teeth “home” meaning in another country; but the judge said you can’t sue someone for inferring someone is from another country.
• Verbal Abuse
  • The patient tried telling the judge that the dentist saying the patient’s husband was not welcome at the clinic (which the dentist admitted she said) was verbal abuse and that she could sue the dentist for it, but the judge disagreed and said the patient can’t sue for that.

For the following claims, the judge said the patient outlined a valid legal dispute, but there was no reasonable chance that the patient would be successful in her lawsuit:

• Fee for service not performed – emergency examination
  • The patient said the dentist charged her for an “emergency examination”, but it wasn’t an emergency and it was false to call it that.
  • The judge saw the fee guide in Nova Scotia and said the emergency examination and specific examination were the same fee, and so the patient didn’t actually lose anything and couldn’t win on that claim.
• Charging a fee for service not performed – tooth fillings / making a misrepresentation regarding treatment
  • The patient said the dentist did not perform two fillings on tooth 16 and overcharged for the work.
  • The dentist said two fillings were done because they were separate, and that a break in continuity means that there are two fillings and not one.
  • The patient tried telling the judge that other dentists gave her different opinions on this specific issue, but since the patient couldn’t provide any valid evidence to dispute the dentist’s claim, the judge said the claim could not be successful.
• Charging a fee for service not performed – adding $61.60 to final invoice
  • The patient said the dentist added $61.60 to her invoice without justification.
  • The dentist gave detailed records about the amounts charged to the patient.
  • The patient gave no other evidence about the charge, but then the lawyers pointed out that the $61.60 is the amount by which insurance coverage exceeded the anticipated charge – and that amount was reimbursed to Ms. Polishchuk and she was provided with a cheque! So the judge threw out the claim.
• Professional Incompetence
  • In the biggest claim in the lawsuit, the patient claimed that the dentist was negligent in providing her with dental services. Apparently one of the fillings fell out, and the patient had pain in one of her teeth. The patient didn’t provide a dental opinion on why this happened, only her own feedback of the situation.
  • The dentist outlined for the judge a number of reasons why a filling may fall out.
  • The judge was quick to mention specifically that “[w]hen a filling falls out it is not necessarily an indication that the dentist was negligent.”
  • With respect to the pain the patient experienced, the dentist noted that pain and sensitivity are both normal and expected when dealing with the kind of filings that were done for the patient. And the judge agreed, saying “[p]ain is of course, not necessarily an indication that dental work has been done in a way that was negligent.”
  • The judge decided that the dentist’s work wasn’t a specialized case that an ordinary person could not understand, and that the dentist’s work was not outside the standard of care; and therefore the dentist could not be negligent.
  • Since the patient provided no evidence about why she had pain or why the filling fell out; and provided no expert evidence to explain that the symptoms were the result of negligent treatment provided by the dentist, the claim could not be successful.

On top of all of that, the judge had some harsh words for the patient. The judge said all of the following about the patient’s lawsuit:

• The patient’s legal documents, like the statement of claim and affidavits, lacked detail (which is necessary to have under court rules),
• The patient tried using hearsay in court documents (which is not allowed in court rules),
• The patient tried using legal arguments in court affidavits (which is not allowed),
• The patient tried using anonymous internet ratings of the dentist (which was not allowed by the judge),
• The patient did not file any expert reports (which are necessary to have when making the above claims), and
• The patient unsuccessfully tried getting around the rules of the court by not having a lawyer.

For all those reasons, the judge threw out the entire lawsuit against the dentist.  No witnesses.  No cross-examination.  No “you can’t handle the truth” situations.

At the end of the written decision, the judge decided that, as usual, the loser of the lawsuit pays the winner.  In this case, the judge told us that the patient actually refused an offer of a payment of $2,500 to pull her lawsuit, and she declined.

So, the judge forced the patient to pay the dentist $4,375 as legal costs for losing the lawsuit.

Lessons for Dentists

The lessons here are clear:

• good dentistry speaks for itself
• beware of self-represented litigants in court
• ensure your records are clear (just in case)

And of course DMC is always here to help your practice with harassment advice, litigation avoidance, and representation in court.