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State v. Deschenes

August 3, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PETER J. DESCHENES, JR., D.D.S., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1312-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 26, 2010

Before Judges Stern and Sabatino.

The New Jersey Insurance Fraud Protection Act ("the IFPA" or "the Act"), N.J.S.A. 17:33A-1 to -30, among other things, subjects a health care professional or other person to civil penalties if he or she "[p]resents or causes to be presented any written or oral statement" in support of an insurance claim "knowing that the statement contains any false or misleading information concerning any fact or thing material to the claim" N.J.S.A. 17:33A-4a(1). Applying that provision, the trial court granted summary judgment to plaintiff, the State of New Jersey, against defendant, Peter J. Deschenes, Jr., D.D.S. ("Dr. Deschenes"), finding that Dr. Deschenes had violated the Act in signing a dental insurance claim form that misstated the correct dates on which Dr. Deschenes inserted six crowns in one of his patients. The trial court also imposed a $1000 fine and ordered Dr. Deschenes to reimburse the state $20,438 in counsel fees and investigative costs.

We vacate the summary judgment order and remand for a trial in the Law Division, at which the factfinder will determine in a plenary fashion whether, as the State contends, Dr. Deschenes actually knew at the time that he signed the claim form prepared by his office that the treatment dates listed within it were incorrect, or whether, as the defense contends, Dr. Deschenes lacked such conscious awareness, and that the situation is not one of a "knowing" misrepresentation but rather one of an innocent clerical mistake. We remand for a trial because there are genuine and material factual issues regarding Dr. Deschenes's state of mind that require testimonial proof and associated credibility assessments.

I.

Dr. Deschenes is a dentist with offices in Warren Township. He has been licensed to practice dentistry in New Jersey for thirty years. There is no indication in the record before us that Dr. Deschenes has ever been charged with insurance fraud, other than with respect to the single claim form at issue in this appeal.

At the times relevant to this matter, Dr. Deschenes was a participating dental provider for patients insured by the Delta Dental Plan of New Jersey ("Delta Dental"). In connection with that role as a provider, Dr. Deschenes agreed to abide by the insurer's policies and procedures. Those policies and procedures included obtaining, for certain specified kinds of treatments, prior approval from Delta Dental and a corresponding estimate of the insurance benefits to be paid. Dr. Deschenes also agreed to complete and submit to Delta Dental signed claim forms after the procedures had been approved and the patient had been treated.

In June 2000, Dr. Deschenes examined one of his longstanding patients, M.C.,*fn1 who was insured by Delta Dental. Based upon his diagnosis, Dr. Deschenes determined that M.C. needed to have six crowns inserted, specifically for teeth numbered 6, 7, 8, 9, 10 and 11.

Following M.C.'s diagnosis, Dr. Deschenes's office submitted to Delta Dental on June 20, 2000 a pre-treatment claim form. The submission sought the insurer's authorization for the installation of the six crowns, with an estimated billing charge of $750 per crown, for a projected billing total of $4500. The pre-treatment claim form, which Dr. Deschenes signed, left blank the actual dates of service, since the work had yet to be performed.

On July 5, 2000, Delta Dental responded to Dr. Deschenes's office with a written "Pre-Treatment Estimate of Benefits Voucher." The voucher indicated that the insurer anticipated paying $1614.50 in benefits for the six crowns--$525 each for the first three crown insertions; $39.50 for the fourth; and nothing for the fifth and sixth. The column on the voucher entitled "Date Service Completed" was left blank.

The terms of M.C.'s coverage with Delta Dental apparently capped the annual benefits payable within a given calendar year at $2000. Because of that coverage limitation, the voucher issued by Delta Dental in July 2000 initially assumed that all six crowns would be inserted within the same calendar year, thereby resulting in only $39.50 in estimated benefits to M.C. for the fourth crown and no benefits for the fifth and sixth crowns.

After receiving Delta Dental's authorization to proceed with the six crown insertions, Dr. Deschenes originally scheduled to have three of the crowns installed on December 18, 2000 and the three remaining crowns to be inserted in January 2001. According to Dr. Deschenes's deposition testimony, the crown procedures were deliberately planned to straddle two calendar years in order to "get the maximum insurance benefit" under M.C.'s dental plan.*fn2

When M.C. arrived at Dr. Deschenes's office as scheduled, on December 18, 2000, Dr. Deschenes observed that she had extensive gingival bleeding. In Dr. Deschenes's professional judgment, the bleeding required treatment before any of the crowns could be inserted. Consequently, the crown insertions were postponed while M.C.'s bleeding problems were addressed.

M.C. returned to Dr. Deschenes's office on December 29, 2000, at which time she was reexamined and given a prescription for mouth rinses. On January 9, 2001, M.C. was seen again by Dr. Deschenes, at which time he made a pre-surgical impression for the six crowns.

Dr. Deschenes's office completed and returned the voucher, which functions as a claim form, to Delta Dental on January 12, 2001. In the "Date Service Completed" column on the voucher, the date of "12/18/00" is handwritten alongside the entry for the first three crowns, and the date of "1/9/01" is handwritten next to the entry for the last three crowns. Dr. Deschenes admittedly signed the voucher. His signature appears above a signature line and below preprinted language in small print, certifying that "the procedures as indicated by date have been completed[.]"

After receiving the returned voucher, Delta Dental paid Dr. Deschenes's practice the sum of $3150 for all six crowns combined--$1575 for the listed December 18, 2000 appointment date and $1575 for the January 9, 2001 listed appointment date.

On March 5, 2001, Dr. Deschenes completed the necessary procedures and physically inserted all six crowns into M.C.'s mouth. When subsequently asked by the State's investigators why his office had submitted the completed voucher for M.C. in January 2001 after her crown impressions were taken, but before the crowns were actually inserted in March 2001, Dr. Deschenes reportedly told them that there was confusion because "some companies want you to bill on the date of impression" and others "want[] you to bill on the date of insertion." Dr. Deschenes acknowledged, however, that under his provider agreement ...


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