Expert: Ray A Miller - 2/22/2011

Question
QUESTION: We need clarity on an issue in our medical office.  When a patient has not signed a form with a breakdown of how much he agrees to pay or what the cost of the procedure/service is, and has even received a check from his insurance company that he should forward to us, but has not, and does not pay his balance, the thought is: "They are wrong, it's illegal not to give us the money for the work we did.  Put his account into collections!!!" or, "Take them to court!!!"  I understand why this is being said...and true, we do have their signed consent for treatment, but NOTHING showing what the cost is, how much they are expected to pay, or when they should pay it. However, my understanding from attending a collections law seminar was that if there is no contract, you cannot put them into collections or take them to court since there is no agreement.  If this is done, and you know there is no written agreement, we would be in violation of the FDCPA, even though we are an original creditor, and I, as a collector, could be personally sued.  Who is right?  Thanks, Ray.

ANSWER: If you have an assignment of benefits on file, you should be able to contact the insurance company and mention the term promissory estoppel.  This means they have to pay you and collect their money back from the consume. You have to be able to prove that you billed the insurance company before the funds were disbursed.

If this does not work, the forms that you had the patient sign should have stated that they agree to pay reasonable and customary fees for service.  If so, sue them as normal.

I hope you have found this helpful.

---------- FOLLOW-UP ----------

QUESTION: I think I may have explained the scenario incorrectly.  Our problem is that we never had the patient sign anything at all stating they agree to pay reasonable and customary fees for service.  Perhaps they signed for a previous visit, but nothing for their current visit.  It was overlooked for one reason or another.  We have since changed our forms to state that their consents will stay on file as long as they continue to treat at our practice; but meanwhile, all we have is their consent for the procedure or treatment itself, but nothing regarding payment.  As far as filing the claim, we have no problem with that, since the insurance company usually pays, but it's just the patient's portion that is not paid, and the account needs to be sent to a collection agency or be taken to court.  I do not want to violate any laws by putting an account into collections if we do not have our ducks in a row, by being able to substantiate the debt with a signature stating they agree to pay .  If I can do so as an original creditor vs. a third party collector, then I will go ahead and do so as instructed, being compliant with the FDCPA.  I look forward to hearing your response.  Thanks again.

Answer
The only thing I can think of at this point is complied consent.  If the patient did not tell you to stop, they they are agreeing to the services being rendered and thus agreeing to paying for them.  I go to doctors all the time and do not sign anything but consent for treatment.  I hope this helps.