Legal challenges can pop up at any time. But strict adherence to the fundamentals of recordkeeping can serve notice that you are a diligent health-care provider
Frances Dean Wolfe
Case #1: A dental hygienist and her dentist employer receive a notice of summons (subpoena) for a patient`s clinical records. They are notified that this patient, a mild-mannered patient in his mid 50s with Stage II periodontal disease, has entered a complaint with the state dental board of examiners. Included in the list of allegations are "aiding and abetting/practicing dentistry without a license" (directed at the hygienist), "overdiagnosis of periodontal disease" (directed at the dentist) and "fraudulent billing practices" (also directed at the dentist).
The dentist`s heart begins to pound and his face turns a peculiar shade of gray. The hygienist`s stomach twists into knots, her knees begin to knock and her face turns white - she feels as if she`s going to faint. The investigative hearing will be held in 60 days. What do they do in the meantime? What went wrong and why has this patient filed a complaint?
Case #2: In another state, a hygienist was having a tough day. Her 4 p.m. recall patient, a successful and demanding businesswoman in her early 40s, had been snappish and irritating. She arrived late for her appointment (as usual) and demanded to be seated immediately. The hygienist could think of many other things she`d rather be doing at the time, but kept her cool and treated the patient with every professional courtesy.
When it was time to call the dentist in to check her patient, the hygienist made a glib note on the clinical chart, "PITA" - short for pain in the a_ _. The dentist nodded and smirked silently to himself when he read the notation on the chart and proceeded with the clinical exam.
Six months later, the patient`s attorney requested copies of her records. A lawsuit was pending. The office manager, making duplicates of the records as requested by the attorney, sees the "PITA" notation in large letters on the clinical chart. Ouch! What should be done? How should this have been handled? And what should be done in the future when noting remarks about patients?
Case #3: A patient of record whose financial statement is up-to-date is moving to another state. She breezes into your office unannounced and asks to take her dental records with her. What should you do? Who owns the patient`s records? What are her rights? What are the practice`s rights?
Case #4: A new hygienist examines a 58-year-old woman who has been a faithful patient of record every six months for 10 years. This patient has been a tremendous referral source of new patients and pays her bill in full at every office visit. Upon reviewing the chart, the hygienist finds no previous perio charting scores. Upon performing six-point checks of all teeth, she notices 6, 8 and 9 mm pockets. (This patient will undoubtedtly lose several of these teeth due to periodontal disease!) The patient believes her oral health is excellent and has every faith and confidence in the doctor and the practice. What should the new hygienist do?
In each of these cases, legal recordkeeping is a key element in reducing the likelihood of malpractice litigation or review before the state board of dental examiners. While there are no guarantees of preventing allegations or lawsuits, the following information is presented as an information source of the likely outcome in each case. Hygienists are advised to check with their dentist and individual state practice acts for further information. The cases presented here are fictitious and are used for illustrative purposes only. In the event of malpractice litigation or legal summons, it is best to consult with an attorney.
Review and resolution of Case # 1
The patient had been seen sporadically in the practice during the last eight years. He had his last prophy appointment three years ago. Most recently, he had returned to have a crown recemented. At that time, the dentist performed spot perio pocket depths and told the patient he needed an appointment with the hygienist for a thorough periodontal evaluation and prophylaxis.
Upon his return for the hygiene appointment, the hygienist perio-charted all pocket depths, noted Stage II periodontal disease and noted on the chart that the patient required four appointments of deep tissue scaling and curettage. The treatment plan, including required X-rays, was $465. The hygienist relayed her findings to the dentist, who, remembering the patient, concurred with her and indicated the receptionist should set up the required appointments for the patient.
The patient paid the fee charged for the day, but was adamantly opposed to the additional perio treatments and was outraged at the proposed fees. When he got home he pulled out his insurance benefits booklet, which stated the carrier would allow as much as $53 for an adult prophylaxis twice a year; that if medically necessary, it would pay for a prophylaxis more often with sufficient substantiation.
The patient was outraged. Because he was not examined by the dentist at the hygiene appointment, his perception was that the hygienist had made a diagnosis - and in this case an overdiagnosis - of his condition; further, that the dentist concurred to charge a higher than normal prophy fee. After all, all he wanted was to have his teeth cleaned.
A fact-finding panel of the state board determinded that neither the dentist nor the hygienist were practicing outside the scope of their respective licensed professions. In reviewing a copy of the state dental practice act, the board found that the hygienist had not made a diagnosis because she relayed her findings to the dentist, who was in the office at the time of the appointment. The board also determined that, indeed, the dentist was within his practice scope to recommend and provide needed care above the standard of care subsidized by the patient`s insurance provider. Also, the board rules that the patient did have a right, after being advised, to have only a prophy twice a year, as covered by his insurance carrier, regardless of his true need for more comprehensive periodontal treatment. The dentist and hygienist were cleared of all allegations.
Review and resolution of Case #2
This can be potentially very embarrassing to the practice and especially to the doctor! What could or should have been done? First, never attempt to change or alter original records. If additional clinical notes are required later, make a separate line entry and note the date. When making personal notations or remarks about patients, always do so on a separate piece of paper. Never include such statements as part of the original record!
In this particular case, the patient`s attorney was attempting to win a settlement related to another practitioner`s care, which was in no way directly tied to this dental practice. Today, this hygienist is very careful when making notations in the permanent record!
Review and resolution of Case #3
The practice actually owns the records. Can or should the patient be allowed to take the originals with her? No. The doctor maintains ownership of the original physical documentation forever. Because the patient`s account is paid in full and you wish her well in finding a new dental team to care for her needs, the following options are appropriate:
- You can offer to help her find a new dentist in the city where she will be relocating.
- You can offer to make a duplicate (photocopy) of her records to take with her.
- You can ask her to make her request in writing and tell her you will forward duplicate records to her at her new address.
- You can suggest that when she has found a new dentist that he or she request the records be sent directly to him or her.
Can or should you charge the patient for copies of the records and/or X-ray duplicates? Charging a modest fee - as much as $25 - is acceptable to cover the practice`s overhead costs. Some offices charge nothing, especially if the patient has sent referrals, kept her appointments faithfully and paid her account on time. If an outstanding balance is on the books can you refuse to release the patient`s records? Not really. You may mention this to the patient and inquire if she`d like to take care of the balance today.
Review and resolution of Case #4
This hygienist is in a very sensitive position. She must support the doctor and instill confidence in the patient. On the other hand, it is her license that may be in jeopardy. Upon completing perio score charting, she should make meticulous and nonjudgmental clinical notes. The hygienist should offer support and encouragement to the patient as wel as diplomatic suggestions such as, "I see there are few areas here that Dr. _____ may want to take a look at. He`s very thorough and wants to give you his undivided attention."
When calling in the doctor to conduct the recall exam, she should first pull the doctor aside and share her clinical findings and concerns. It is ultimately the dentist`s legal and ethical responsibility to convey the patient`s clinical condition and latest findings to her.
Sound recordkeeping strategies limit liability
While no practice is immune from the possibility of a lawsuit, the experts point out certain do`s and don`ts that may help lessen the possibility of a suit being entered. While not intended to be taken as legal advice, using the following steps may be helpful.
1) Always obtain written, signed and dated informed consent prior to initiating treatment. If the patient is a minor or mentally incapable, request that a parent or guardian give written consent. Informed consent has been defined by some authorities as a process, not just a signed form. Informed consent should be obtained from the patient in a way the patient can understand. Informed consent generally includes the ailment, disease or problem; the recommended treatment and the risks involved; alternative treatment(s) and the risks; inadequate or nontreatment risks; and fees.
2) Always obtain a thorough medical/dental history, signed and updated. Again, if the patient is a minor or mentally incapable, request this information from a parent or guardian. Make sure you update this information at each recall visit or, at least, annually.
3) Make sure that all records are complete and accurate. This includes up-to-date radiographs, a written treatment plan, diagnosis and dated progress notes. The practice also must document that the reasons for recommended treatment were explained to the patient, as well as possible complications of delayed treatment or noncompliance with recommended treatment. Document that you have explained all of the possible treatment options and their corresponding prognoses. Note: If the patient chooses to reject recommended treatment, ask the patient to sign a detailed, dated waiver rejecting treatment and stating that he or she understands the consequences.
4) Document all patient comments, complaints, reasons for seeking an appointment ("Patient complains of gingival bleeding when brushing").
5) Always make chart notations in ink. Never erase, white-out or attempt to amend records. If you should make an error, make a single strike-out through the error, note your initials and the date and then make the correction immediately. Initial all entries.
6) Never alter or destroy records. If you think of an additional treatment note that should have been entered, enter it on a new line with "addenda" and the date entered.
7) While you may wish to cull out inactive records from your active patient file periodically, never throw out old ones! Store them in a separate, secure area - such as in a basement, attic or garage.
8) Always keep treatment, financial and personal patient documentation separate. This is important because if derogatory notes are made in the clinical treatment portion of the records and these records are subpoenaed, the complainant (patient) and his or her attorney may be privileged to read this information!
9) Always follow a uniform format in your record-taking and other documentation. This helps ensure conformity and lessens the likelihood of omission of relevant information.
10) If records are requested - for any reason - always send out duplicates, never the originals! If they should be lost in transit, the burden of proof would be on the dentist. Instead, invest in an X-ray duplicator and photocopy the clinical records. They are worth the extra time and expense.
11) Never denigrate another dentist`s treatment. Clinical records and subsequent discussion and recording should include only the patient`s condition as diagnosed, objective observations, patient`s comments relating to the situation and the necessary treatment plan or other recommendations, e.g., referral to an oral surgeon for extraction.
12) Document all telephone conversations with patients, referring doctors, requests for prescriptions, etc., that take place outside of the treatment area. Don`t leave this to memory.
13) Use prescription pads with carbon paper or carbonless copies and make sure one copy goes into the patient`s record.
14) Use standard clinical notations and abbreviations. Avoid code words or secret entries and write legibly.
15) Document all cancellations and late arrivals in the record.
16) Enter all radiographs and other diagnostic aids and dates taken.
17) Indicate specific postoperative instructions or, simply, that standard post-op instructions were given to the patient.
18) Indicate the type (generic or brand name) of materials used for impressions, restorations, anesthesia, cements, liners, sealants, etc.
19) Never make guarantees! Inform patients that their actions - sound homecare, returning for recommended recall intervals, etc. - have a substantial effect on the success of many treatment outcomes.
20) If an accident happens, address it immediately! Alert the dentist about the incident. Explain to the patient (or parent) exactly what happened, what can be done to correct the problem and if future or subsequent reparative treatment is required. Take copious notes of what the patient is told. Follow up with the patient to ensure that all is well.
Frances Wolfe is a pen name for a long-time dental editor.
References:
- Boyce, JS. Risk Management: An introduction for the dental practice. Dental Hygiene 1987:61:5045-507.
- Buckner, F. Spoilation of Evidence: The Destruction, Alteration or Loss of Medical Records. Medical Practice Management, Sept/Oct 1993.
- Caplan, CM. A philosophy of risk management. Dental Economics, Vol 83, No 7, July 1993.
- Curran, AE, Darby M. Dental hygiene preceptorship: an issue of risk management. JDH 1990;64:290-295.
- Englehardt, Debra, speaking at ASDHA Annual Session, Phoenix, AZ, 1996.
- Fink, B. MDA Endorsed Programs: Patient Records and Medical History: Tips to Avoid Liability. JMDA, April, May 1996.
- Handley, D. Dental malpractice claims: causes and cures. Dental Economics, Vol 86, No 4, April 1996.
- Harvey, L. Don`t get burned in a lawsuit`s firestorm. RDH, Vol 16, No 3, March 1996.
- Ibsen, OAC. Practice within the law, JDH 1990;64:99, 114.
- Lyons, S. Risk Management or Risk Taking? A Look at Malpractice. ACCESS, ADHA, Nov 1990.
- O`Connell BA. Anatomy of a lawsuit. Dental Hygiene 1988:62:53, 69.
- PracticeSmart Newsletter, April 1997.
- Reveal, M. ADHA perspective. JDH 1990;64:16, 18-19.
- Rolwes, EJ. Dental malpractice: Practical tips on avoiding a dental malpractice claim. CDS Review, Vol 89, No 8, September 1996.
- Runnells, RR. The downside of infection control recommendations, guidelines and requirements: Legal exposure. CDS Review, Vol 87, No 8. Sept. 1994.
- Tekavec, C et al. Risk Management and Practice Management. AO, vol 86, Scientific 1993.
What about confidentiality of records?
The threat of litigation is ever present, so maintaining patient confidentiality is more important than ever. In reviewing how your practice manages patient records, here are three questions to ask yourself:
(1) Does our practice make notations or put word stickers on the outside of the chart or file jacket? (Most commonly, these include: "penicillin allergy," "diabetic," "premedicate," or noting some form of public assistance.)
(2) Do we send treatment or X-ray results in the mail on a postcard?
(3) Do we make "clinical watch" or future treatment notations on recall postcards? ("Looking forward to seeing you at your next appointment, George, to check the 5 mm perio pocket on #18.")
If your answer is "yes" to any of these three questions, acording to practice management expert Debra Englehardt, your practice is in violation of patient confidentiality. In the instance of question one, any time this file jacket is out in plain view of others, the patient`s privacy has the potential to be violated. Solution: It`s okay to put color-coded stickers on the outside of the chart, as long as they contain no words. Make all notations on the inside of the chart.
In the instances of questions two and three, personal information may be disclosed to anyone who may see the back of the postcard from the time it leaves your practice until it reaches the patient`s mailbox. Solution: In this instance, put the postcard inside an envelope and mail it to the patient or use double-sided postcards that fold over, keeping personal information on the inside. The U.S. Postal Service requires a sticker to be attached on the foldover postcard to keep it sealed until it arrives in the addressee`s hands.
And speaking of confidentiality ... can you fax a patient`s medical/dental information to an insurance company, attorney or another practice upon request? This is tricky because the same rules of patient confidentiality apply when faxing a record. It`s advisable to review your current written office policy about faxing records. In doing so, you might want to add a paragraph to your patient registration form that says, "I authorize the release of my records, upon my dated signature, to insurance companies, consulting physicians or referral practitioners as deemed necessary by this office."
You also can add a note to the cover sheet of your fax when transmitting patient information that reads, "The following information is of a confidential nature, intended ONLY for the recipient whose name appears on this cover page. Should you inadvertently receive this information and it is NOT intended to be sent to you, please advise us of this immediately by calling our office at (phone number). Then destroy the information immediately. Thank you."
