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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87469
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I have a question about a insurance fraud conducted by my health

Resolved Question:

I have a question about a insurance fraud conducted by my health provider.

In 2008, my dentist (dentist A) performed root canal and crown on two of my teeth. During the procedure and after, I was informed and billed for a porcelain ceramic substrate crown. However, I just realized that the material my dentist used is not porcelain ceramic substrate, after seeing a different dentist. I have contacted my insurance companies and found out that the previous dentist submitted insurance claims for the porcelain crowns he didn't put in for me, and was paid by the insurance company.

As a result of the poor material dentist A used on my teeth in stead of porcelain ceramic substrate, one of the filling in my teeth ended in a crack, and I had to replace it with a different crown in 2011, done by a different dentist (dentist B). My replacement of the crown is not covered by insurance, since it is within 5 years of the first crown claim done to the same tooth.

I want to seek legal action towards this misconduct of my dentist. Please suggest a proper procedure. Thank you.
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello, my name is Ely. Welcome to JustAnswer. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not necessarily to tell you what you wish to hear. Note: there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. First of all, please allow me to explain how this works, and then what someone in your situation may do about this.

OVERVIEW
To sue in state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state. Every cause of action has its own elements, and each element has to be satisfied for a cause of action to be successful in court.

Here, you very likely have a complaint for two causes of action: fraud and medical malpractice.

The essential elements of a cause of action for fraud are "representation of a material existing fact, falsity, scienter (knowledge of the falsity), deception and injury." Channel Master Corp. v Aluminium Ltd. Sales Corp., 4 NY2d, at 407, supra).

The requisite elements of proof in a medical malpractice [action] are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage." Amsler v Verrilli, 119 AD2d 786; see, Bloom v City of New York, 202 AD2d 465).

While there is a statute of limitations for fraud (6 years per N.Y. Civ. Prac. L. & R. §213) and medical malpractice (2.5 years), the statute may be "tolled" if the discovery was not reasonably made until later.

ATTORNEYS, INSURANCE, AND YOU
Now this is all good and well said, but the question remains - how do you proceed? Well, the first thing is to retain counsel. The attorney should take this on a contingency basis, meaning they do not get paid unless you do. Usual set up is their take is 33% settlement, 40% win at trial, 45% at appeal; plus some office costs. Everything is negotiable.

Counsel is necessary because file suit if needed whereas without counsel, the dentist and his med-mal (medical malpractice) insurance policy would not see you as much of a threat without an attorney since you filing or winning a suit without counsel is unlikely.

Then the attorney works out a deal with the dentist's med-mal insurance company and settles out of court - about 90% of such cases do. If not, then this goes to trial. Add to this that you also have leverage of possibly filing a criminal complaint against the dentist for fraud, which can help to get a good deal in settlement.

May I recommend the NY Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

I hope this helps and clarifies. Good luck.

IMPORTANT: Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating. My ultimate goal is your complete satisfaction.
Customer: replied 1 year ago.

Thank you for helping me to understand the situation better.


 


As I put in my initial question, the dentist A that I am complaining about resides in NJ. However, I live in upstate NY. If I file a case against the dentist, will it be handled in NY or NJ. Should I seek lawyers in NY?

Expert:  Ely replied 1 year ago.
Y,

Thank you for helping me to understand the situation better.

My pleasure.

As I put in my initial question, the dentist A that I am complaining about resides in NJ. However, I live in upstate NY. If I file a case against the dentist, will it be handled in NY or NJ. Should I seek lawyers in NY?

Actually, one can seek relief in either state court. Both NY and NJ have jurisdiction over this matter, because you live in NY, and they live in NJ. Ergo, it is the Plaintiff's decision on where they wish to file. Most of the time, it makes sense to file in your state, as to make it less practical and convenient for the Defendant. Should you wish to pursue this in NJ, you can use an NJ attorney - here.

The elements for fraud and medical malpactice in NJ are very close to that of NY so the answer essentially stays the same.

IMPORTANT: Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating. My ultimate goal is your complete satisfaction.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87469
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 17 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Hi,


 


I received a call back from the NY Bar association representative. They said that I must find a lawyer who can practice in NJ in order to proceed, which means I cannot use a local lawyer, in western NY. Is this information correct? Is this common? This is different from your previous answer.


 


Thanks,

Expert:  Ely replied 1 year ago.
Y,

I stated that depending on the issues, you may use either an NY or an NJ attorney. Try talking with an NJ attorney then - see here.

"The elements for fraud and medical malpactice in NJ are very close to that of NY so the answer essentially stays the same."

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