by Barry F. Levin, Esq. and Philip M. Bogart, Esq.
The importance of a dental practice’s patient records cannot be overstated. Dental practices are required by law to produce and maintain adequate patient records. Failure to do so can expose the practice to significant risks and liabilities. In addition, the Health Insurance Portability and Accountability Act (HIPAA) and many other laws and regulations require the retention of records for varying periods of time.
Clear, organized, and detailed dental records are necessary to provide patients with the best care possible. Moreover, a dental practice’s records may be used in a court of law in connection with the prosecution and/or defense of malpractice claims or other civil lawsuits. As a result, here are certain “best practices” that should be considered in connection with the creation, maintenance, and destruction of patient records.
Carefully correct mistakes or omissions in patient records
Seemingly insignificant aspects of transcription can create significant problems. Never delete, erase, or white out entries, and do not leave blank lines or spaces with the intent of adding more information later. These actions may be construed as evidence of improper alteration. Instead, draw a single line through any error, then date and initial the entry for verification. In addition, all boxes and blanks should be completed/filled in.
Document any refusal of treatment
While a dentist will recommend the best course of action, it remains the choice of the patient whether or not to follow the advice. If a patient does not follow the recommendations of a dentist, it is extremely important for the dentist to make a detailed note of the event in the patient’s records. Record the details of the discussion with the patient about the potential benefits and risks associated with the proposed treatment. Clearly explain the reasons given by the patient for refusing treatment in the patient’s file.
Any cancelled appointments should be included in a patient’s records. Explain both the intended purpose of the appointment and the reasons for cancellation.
Just the facts
Because patient records become the first source of evidence in the unfortunate event of malpractice litigation, it is imperative that nothing in a patient record can be viewed in the wrong context. To avoid embarrassment, liability, or the need for uncomfortable explanations, keep patient records as objective as possible.
Information in the dental record should be clinical in nature. Criticizing comments or witty remarks should not be included in a patient record. Any pejorative content in a patient record will almost certainly be brought up in litigation.
Proofread entries
Review all entries to ensure that the written record reflects the actual intent of the dentist.
Separate financial information from patient records
Financial information does not belong in the dental record. Keep all financial documents in a separate folder and filing system. It is inappropriate to include insurance benefit details, payment records, or any other pecuniary information in a patient’s clinical record. Mixing financial records with dental records may give the impression that a patient’s ability to pay created bias in the diagnosis and evaluation for treatment options. In addition, upon any transfer of a patient chart, the dentist receiving the chart does not need to see nonmedical information.
Confidentiality
Patients will not be happy if they sense that the dental office does not protect their privacy and the confidentiality of their patient records. When carrying confidential documents, use a blank cover sheet to shield the information from wandering eyes. Additionally, confidential information should be properly identified as such and kept out of view of unauthorized parties. Avoid leaving confidential documents where others can read the content — keep such files protected in a safe location.
Squeaky wheels
Keep in mind that dissatisfied patients require the highest level of care and documentation because they pose the highest risk of making a claim against the dental practice.
Exercise caution when using e-mail
E-mail correspondence with patients can be quite helpful, but it poses significant risks to a dental practice. Patient confidentiality can be compromised, as it is difficult to confirm the identity of the author of an e-mail, and e-mails can be misdirected to third parties. Be careful about using the “reply to all” function, and always double-check the recipients of any e-mails that contain (or solicit) confidential information. In addition, important points can be lost in translation in an e-mail. Always be clear and specific, and do not assume what the other party knows. If anything, write an e-mail as if an unrelated third party was going to read it and be able to understand it. Copies of all e-mails should be retained in the relevant chart.
For the above-mentioned reasons, it is essential to inform patients about the risks of using e-mail correspondence. After explaining these risks, each patient should provide informed consent by reading and signing a consent form. In addition, work with a trusted legal advisor to craft a disclaimer to be included with every e-mail correspondence that includes clear instructions for parties who mistakenly receive confidential e-mails. Taking these steps will help protect a dental practice from liability regarding the protection of confidential information.
Finally, do not make the mistake of thinking any e-mails are private, and this includes internal e-mails among employees of the practice. E-mails are among the first sources of information an attorney will request in the event of a lawsuit against a dental practice. If the dissemination of an e-mail to a courtroom or a third party could cause embarrassment or bad publicity (e.g., an off-color joke) do not send the e-mail.
Shred confidential documents, records, and files
When permitted by HIPAA and other applicable laws, hard copies of confidential documents should be shredded for disposal, preferably by a professional shredding service. Be sure to have the shredding service sign a confidentiality agreement that indemnifies the dental practice in the event of a breach of confidentiality. In addition, as the disposal of radiographs presents health risks and requires special care, be sure to contact a specialist to determine the proper method of destroying X-rays.
Deleting electronic files
Be aware that simply deleting e-mails or electronic documents is not sufficient. When a file is “deleted,” the raw data file remains on the hard drive. Work with an information technology specialist to ensure that confidential electronic files are completely wiped clean from computer memory.
Consult the ADA Web site
The American Dental Association has valuable guidance on these and other issues available online at www.ada.org.
Barry F. Levin is a partner and vice chair of Saul Ewing LLP’s business department. Philip M. Bogart is a special counsel in the business department in Saul Ewing LLP’s Baltimore office. They represent dentists and the business entities in which clinicians practice in all aspects of the dental practice structure through and including the structuring, negotiation, documentation, and implementation of associateships or employee arrangements, partnership arrangements, acquisitions, sales, and mergers of mature practices.
