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Feiler v. New Jersey Dental Association

Decided: June 19, 1984.

MELVIN FEILER, D.D.S., PLAINTIFF-APPELLANT,
v.
NEW JERSEY DENTAL ASSOCIATION, DEFENDANT-RESPONDENT



Antell, Joelson and McElroy. The opinion of the court was delivered by Joelson, J.A.D.

Joelson

This is plaintiff's appeal from a judgment of the trial court in favor of defendant-counterclaimant. The opinion upon which the judgment was based can be found in Feiler v. New Jersey Dental Ass'n., 191 N.J. Super. 426 (Ch.Div.1983). The judgment ordered that plaintiff and dental centers operated and controlled by him, in billing insurance carriers or any other third party payers, must do one of the following things with respect to any plan requiring percentage co-payment from the patient:

(a) enter on the attending dentist's statement a fee in the amount he actually intends to collect for the procedure billed for upon the assumption that the recipient of the statement will treat the procedure as a covered dental expense,

or

(b) type, print or stamp on the face of the statement, or on a label affixed thereto, in legible characters at least ten points in height, the following words:

WE WAIVE OR DISCOUNT COPAYMENTS EXCEPT FOR BASIC PROCEDURES COVERED 100%. IT IS OUR INTENTION TO (Check One)

( ) BILL THE PATIENT $AFTER RECEIPT FROM YOU OF THE MAXIMUM BENEFITS PAYABLE UNDER YOUR PLAN ON COVERED PROCEDURES ON A CHARGE OF $( ) WAIVE ANY FURTHER PAYMENT FROM THE PATIENT AFTER RECEIPT FROM YOU OF THE MAXIMUM BENEFITS PAYABLE UNDER YOUR PLAN ON COVERED PROCEDURES ON A CHARGE OF $( ) DETERMINING OUR CHARGE TO THE PATIENT ONLY AFTER RECEIPT OF PAYMENT BY YOU.

( ) THIS PATIENT HAS SECONDARY COVERAGE FOR THE COPAYMENT.

The judgment further provided that any insurance carrier or third party payer wishing to have the required legend omitted from billing statements could so declare, after which plaintiff could omit the legend from the future statements submitted to such carrier or third party payer.

One of the points raised in the brief submitted on behalf of plaintiff is that "[t]he trial judge abused his discretion in refusing to allow Dr. Feiler to present expert testimony which would have refuted an essential element of the N.J.D.A.'s counterclaim." This issue relates to plaintiff's motion "to permit Daniel McCarthy or Drew Davidoff to testify as expert witnesses on behalf of plaintiff. . . ." Although the motion did not refer to R. 4:17-7, that rule was obviously implicated as neither of the two expert witnesses had been designated in plaintiff's earlier answers to interrogatories. Under R. 4:17-7, amendments to interrogatory answers served later than 20 days prior to the first date fixed for trial ". . . may be allowed only for extraordinary or compelling reasons and to prevent manifest injustice. . . ."

It is undisputed that plaintiff's motion for leave to permit the testimony of the expert ...


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