Dental Law in the United States of America

Klaus Rötzscher (ed.)Forensic and Legal Dentistry201410.1007/978-3-319-01330-5_14

© Springer International Publishing Switzerland 2014

14. Dental Law in the United States of America

Joseph P. Graskemper 
(1)

Stony Brook School of Dental Medicine, Stony Brook, NY, USA
 
 
Joseph P. Graskemper
Abstract
Dental records have become more and more important with the introduction of more procedures and techniques available to the dentist and the increase legal scrutiny of alleged dental malpractice cases. Dentists no longer simply fill or extract teeth. Today’s dentist, with proper training, is able to provide patients with advanced endodontic, periodontics, restorative, and other general and specialist patient care. As techniques and treatments have expanded, so has the risk involved in providing such advancements. With the increase in risk, the chance of a bad result also increases, such that the patient may become dissatisfied and seek legal recourse. In the early 1970s, it was relatively uncommon that a dentist would be sued. With the increase in legal pursuit to remedy an acceptable or bad result, dental records were found to be lacking of basic information needed to defend the dentist. By the 1980s, there was a large movement within the dental community to improve the records kept by dentists regarding their patient treatment. Hence, greater importance has been placed on the information placed in the dental records as well as proper maintenance of dental patient records.

14.1 Introduction

Dental records have become more and more important with the introduction of more procedures and techniques available to the dentist and the increase legal scrutiny of alleged dental malpractice cases. Dentists no longer simply fill or extract teeth. Today’s dentist, with proper training, is able to provide patients with advanced endodontic, periodontics, restorative, and other general and specialist patient care. As techniques and treatments have expanded, so has the risk involved in providing such advancements. With the increase in risk, the chance of a bad result also increases, such that the patient may become dissatisfied and seek legal recourse. In the early 1970s, it was relatively uncommon that a dentist would be sued. With the increase in legal pursuit to remedy an acceptable or bad result, dental records were found to be lacking of basic information needed to defend the dentist. By the 1980s, there was a large movement within the dental community to improve the records kept by dentists regarding their patient treatment. Hence, greater importance has been placed on the information placed in the dental records as well as proper maintenance of dental patient records.

14.2 The Legal Dental Record

Dental records are legal records documenting the treatment provided for a patient. Therefore, it is very important that dentists learn what information should be entered and how to enter it into the record to withstand legal scrutiny. There is also the professional responsibility to make the patient’s dental record confidential and safe, especially with computer-generated (paperless office) dental records. Confidentiality should remain a constant concern with readily transmitted patient information via the Internet. In the United States, the Health Insurance Portability and Accountability Act (HIPAA) of 1996 was passed to protect patient information and enhance the rights of consumers to access their health information.
First and foremost, the dental record is the factual representation of the patient’s dental treatments, diagnostics, correspondence, and consultations. The patient’s record should contain information that would allow another dentist or an expert witness, if needed, to understand the need for the treatment provided, the manner in which it was performed, and the patient’s response and outcome from the treatment provided. It should also contain any pertinent information relative to the treatment being provided (Sandy Sanbar et al. 2010, p. 2). The records should contain comprehensively pertinent dental, medical, or health information about patients, including diagnosis and treatment of diseases (Sandy Sanbar et al. 2010, p. 2). Dental records must be direct, concise, clear, complete, and unambiguous. Forensics often look into dental records for identification of a former patient. Hence, the need to be complete cannot be emphasized enough.

14.3 Purpose for Dental Records

The following is a list that shows the many purposes of good dental records:

1.

Recording the health status of the patient at the time of the initial examination
 
2.

Recording the treatment provided to the patient
 
3.

Providing legal documentation on behalf of the patient, the courts, third-party payers, or the patient’s heirs
 
4.

Providing legal documentation in the defense of legal claims made against the dentist
 
5.

Fulfilling the laws regulating professional services
 
6.

Advancing medical/dental research
 
7.

Contributing to quality assessment and assurance
 
8.

Providing communication among health practitioners
 
9.

Helping identity victims of a mass disaster [or unidentifiable body] (Loomis et al. 2002)
 

14.4 Record Protocol

In general, most records contain abbreviations that are commonly used in recording patient care. Any abbreviation used should be commonly known within the profession. The abbreviation should be able to be understood by another dentist, including an expert witness, in understanding the care provided. So, any personally created abbreviations used for your own office would probably not be acceptable in proper record keeping. All entries made in a paper chart should be in ink, preferably black since it copies the best, in case copies are needed for the defense of a malpractice claim. Pencil, highlighter, and sticky notes should not be used. If a sticky note is used as a reminder, be sure to remove it when completed or incorporate the information on the note into the record as soon as possible. However, in reality, sticky notes are used in many offices as reminders. Many advise not to use sticky notes in the chart to avoid confusion and inquiries as to why the information was not part of the permanent chart. Hence, do not use them. Personal subjective opinions/feelings/attitudes towards the patient also have no place in the records. As an expert witness, poorly copied, indecipherable records make the defense of a malpractice claim extremely difficult.
Other entries pertaining to the patient that should be made include those regarding the patient’s cooperation or noncooperation in the treatment provided, such as poor oral home hygiene, behavior management problems, not following referrals, refusing recommended treatment, cancelling appointments, not showing for appointments, or coming unreasonably late. Continued noncooperating situations affect treatment outcomes and may raise suspicion of malpractice when the desired results are not obtained. These situations all show the patient’s contributory or comparative negligence per your jurisdiction. It cannot be stressed enough the importance of recording any patient’s noncooperation.
All entries should be dated and signed or initialed. There should be no lines or pages left blank. If this should occur, place a squiggly line through the empty space so as to prevent any additions to the record that would cause suspicion of an altered record. If a mistake is made upon entry, do not white out, scratch out, or try to transfigure the entry. Simply draw a simple line through the entry and make the correct entry. Upon review of your records at a later date, you may find that there is a need to add to the records concerning treatment previously rendered. Do not back date the entry. Rather, enter the current date, mark it Late Entry, and then make your entry correctly.

14.5 Electronic Records

Electronic/computerized paperless offices are no longer a thing of the future. In fact, in some countries, electronic records will be required in the near future. This is a great improvement on having paper records and charts. They facilitate effective quality assurance, analysis of practice patterns, and research activities; speed the retrieval of data and expedite billing; reduce the number of lost records; allow for a complete set of backup records at little or no cost; expedite the transfer of data between facilities, regardless of geographic separation; are a proven long-term cost reducer; and, in most cases, are practice enhancers and a public relations tool (Rule 1001 (3) Federal rules of evidence, Supra Note 10). Electronic records provide at least seven major improvements over paper records:

1.

A legible record.
 
2.

Standard of care guidelines automatically triggered by diagnosis forces proper sequencing and needed criteria for proper patient care.
 
3.

Electronic prescription alerts and possibly prevents both provider and pharmacist of potentially harmful drug-drug interactions or incompatibilities with the patient’s physical or laboratory findings (Pollack 2011).
 
4.

Electronic medical record systems can track ordered laboratory, diagnostic, or imaging tests, alert the provider of abnormal tests, and even notify the patient of the need, or the lack thereof, of future tests, diagnosis, or treatment (Sandy Sanbar et al. 2010, p. 1).
 
5.

Automatically confirm the date and times of all entries and keep a dated and timed log of all individuals, with password protected access, who have accessed the record [audit trail] (Pollack 2002).
 
6.

Automatically generate patient educational materials tailored to the patient’s diagnosis and treatment (Sandy Sanbar et al. 2010, pp. 1–2).
 
7.

A well-documented, complete, and unambiguous medical record allows for a much easier and possibly successful defense of a dental malpractice claim.
 
There are also some concerns regarding electronic records. Critics cite high initial cost, large training investment, hardware crashes and breakdowns, power failures, software glitches, sabotage of the system by disgruntled employees and hackers, unauthorized access, viruses, Trojan horses, reluctance of physicians to use the tightly controlled format for notes, and a host of other real and imagined problems (Evans et al. 1994). There is also the reliability of an electronic record for admissibility in a courtroom. To be admissible as evidence in a courtroom, the electronic records must be reliable. To be reliable, the electronic records must not be alterable upon entry (read-only format), retrievable when needed (backup system), and kept confidential with only authorized password protected, audit-trail worthy entries. As with paper records, electronic records must also be kept in safe storage, per your jurisdiction’s requirements, via a secure off-site backup system (Bruckner 1998). Hence, the maintenance of the integrity of the dental record from its origination to its final resting place in storage is of most importance. Many malpractice decisions have been made based on the authentication, completeness, and integrity of the paper or electronic dental record.

14.6 Information in a Dental Record

The dental record must contain all the information pertaining to the patient. Records should include the following information:

1.

Specifics, in detail, of the treatment provided
 
2.

Reactions to treatment, adverse and positive
 
3.

Doctor and patient comments (including complaints, resolutions, and patient noncompliance)
 
4.

Radiographs
 
5.

Prescriptions
 
6.

Laboratory authorizations
 
7.

Correspondence and telephone conversations between the patient and other healthcare providers (including cancelled and missed appointments)
 
8.

Consultations requested and reports
 
9.

Informed consent forms
 
10.

A drug and medication log (including any over-the-counter [OTC] drugs or supplements)
 
11.

Financial information and agreements (separate from the treatment records)
 
12.

Demographic information (including place of employment)
 
13.

Medical and dental history (including periodic updates as needed per the patient’s needs)
 
14.

Waivers and authorizations
 
Only gold members can continue reading. Log In or Register to continue

Stay updated, free dental videos. Join our Telegram channel

Nov 26, 2015 | Posted by in General Dentistry | Comments Off on Dental Law in the United States of America

VIDEdental - Online dental courses

Get VIDEdental app for watching clinical videos