A DENTIST accused of misclaiming more than £70,000 in expenses from NHS Lothian will no longer repay the sum after the health board's actions were dubbed "irrational and unfair".
The four-year dispute between NHS Lothian and Musselburgh dentist, Joanna Adamczak-Gawrychowska, has finally been settled at the Court of Session in Edinburgh after a judge ruled that the health board had extrapolated ed its overpayment claim from a "miniscule sampling" of just 33 patient record cards from her dental practice.
The case dates back to August 2013 when Ms Adamczak-Gawrychowska, a dentist since 2008, was invited to a meeting with the senior dental advisor for NHS Lothian. The meeting was called after NHS Lothian conducted a review of a sample of 33 patient records cards from her surgery and concluded that a number of the fees claimed for treatments "appeared to be incorrect".
Ms Adamczak-Gawrychowska was told that any overpayments would have to be recovered and it was subsequently agreed that she would carry out a review of all her patient record cards between February 2008 and August 2013.
This review covered a total of 5,545 payment claims. Ms Adamczak-Gawrychowska undertook the review on top of her clinical work with help from nursing staff at the practice, who spent 300 hours sifting through the patient record cards.
In 2014, Ms Adamczak-Gawrychowska wrote to NHS Lothian stating that her own review had identified 629 instances where a sum "had been incorrectly claimed or that a claim which had been made could not now be vouched".
Those claims amounted to an estimated overpayment of £10,531.29. However, Ms Adamczak-Gawrychowska insisted that the remaining 4,916 claims "had been properly made and paid".
In June 2014, NHS Lothian wrote to advise her that an initial sum of £1,500 would be recovered, and that this process would be repeated "until the agreed full recovery has finalised".
However, an email from NHS Lothian in May 2015 notified Ms Adamczak-Gawrychowska that it would claw back a total of £71,783.48. This figure had been extrapolated from the original 33 patient record cards, which NHS Lothian described as a "representative sample".
In light of the gulf between the health board's estimated overpayment and that put forward by Ms Adamczak-Gawrychowska, NHS Lothian suggested that it could either conduct a random sampling of patient record cards or Ms Adamczak-Gawrychowska could provide the health board with a copy of her practice management system software so that a larger number of records could be reviewed remotely and electronically.
The dentist did not take up these offers and the health board went on to collect £48,000 before she eventually launched legal proceedings. Her lawyers argued that NHS bodies are only entitled to recovery money that it can show has been overpaid, "not sums that may have been overpaid when calculated on the basis of inference, sampling or on an educated guess".
In his judgement, Lord Arthurson ruled in favour of Ms Adamczak-Gawrychowska, who will now be repaid all but the £10,500 originally estimated.
Lord Arthurson said: "No explanation was given during the hearing before the court in respect of why [Ms Adamczak-Gawrychowska's] own laborious and extensive review was simply discounted from consideration. [NHS Lothian] were presented with the results of a review of 5,545 records and chose to dismiss this substantial corpus of results and instead proceed on the basis of an extrapolation exercise based in turn on the results obtained from only 33 record cards...the decision bears to be a patently irrational and unfair one."
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