A reader sent me the following e-mail.

“A few days ago, a prospective patient came into my office for an orthodontic consult. I don’t charge for an initial consult. She filled out all the required paperwork, and her photos were taken. After the consult, she then decided to leave and demanded all the forms and photos to be destroyed. My question is: do we have to obey her demand? Once we took the records with her consent, do they belong to our office?”

In answering our reader’s questions, we must first dispense with the red herring—money. Whether a fee was charged for the consultation has nothing to do with anything. The same legal tenets apply regardless of whether a fee was charged. Now that this matter is out of the way, let’s break everything down into individual elements. Our reader talked about an initial consult but only noted that photographs were taken. Let’s make the problem harder and hypothesize that a panorex was also acquired. To summarize, we have a pan, photos, and an initial clinical examination, as opposed to a comprehensive clinical examination, and all administrative paperwork. The “1-step” consultation followed. Once again, we must assume that a diagnosis was arrived at, a treatment plan presented, and a fee proposed for services to be rendered. The patient now says, for whatever reason—examples might be money, personality differences, second thoughts, fear, esthetics, other dental work needed before orthodontics can begin—“thanks but no thanks, and by the way, I want you to destroy all of my records.” Must we acquiesce?

Our first consideration should be whether a doctor-patient relationship was established. Some would argue yea, but others would say nay. The elements required to show the existence of a doctor-patient relationship are that there was a bilateral consensual agreement wherein the patient came to the doctor seeking some form of medical (dental) consultation or treatment; conversely, the doctor agreed to accept that person as a patient with the intent of ministering appropriate medical (dental) services based on the patient’s initial presentation. To further flesh out this consensual relationship—and to do so requires crossing over into the legal concept of consent—we find that the patient must be there voluntarily, not subject to any external pressures to accept treatment, without coercion, and not subject to inappropriate inducements. In other words, the patient must freely seek treatment from the practitioner in question.

The patient must be free of any incapacity, meaning that she must be of legal age and have full capacity to enter into a contract for the provision of professional services. The patient must also have sufficient mental capacity to comprehend the information concerning her diagnosis and the proposed treatment plan. Once these threshold issues are met, the patient is deemed able to consensually enter into a legally recognized doctor-patient relationship.

Those saying yes, a doctor-patient relationship does exist, would opine that the patient voluntarily presented herself to the office to determine whether orthodontics might be a viable solution to whatever clinical problem she manifested. The doctor consensually agreed to obtain whatever clinical information he needed to address the patient’s query. Therefore, at least as far as diagnostic and treatment planning services were concerned, a doctor-patient relationship was established. The existence of this special relationship gives rise to a duty on the part of the doctor to conform to a requisite standard of care insofar as establishing a diagnosis and treatment plan is concerned. So far, neither the doctor nor the patient has consented to the rendering of any form of treatment. At this point along the relationship time line, the patient is merely shopping for an opinion regarding a perceived need, whereas the doctor has merely undertaken to diagnose the patient’s condition and offer a plan for addressing that need.

In order for the doctor to formulate those professional opinions, he was required to take whatever diagnostic records he needed to fulfill this obligation. These physical records belong to the doctor if for no other reason than if he is called to task to defend his diagnosis and treatment plan, these records would be the only way he could do so. It is widely accepted that the patient owns the information in the records, but the physical records themselves belong to the doctor. The patient is entitled to copies.

Let’s now give the naysayers their opportunity. Many would argue that until active treatment is started, there is no doctor-patient relationship for the simple reason that the patient chose not to proceed with treatment of her orthodontic condition. Proposing a diagnosis and treatment plan alone, without anything more, does not rise to the level of having established a doctor-patient relationship. Thus, no duty is owed to the patient to conform to any established standard of care. If this is the case, there can be no potential liability. Therefore, you can give the patient her records and let her destroy them or not; in the alternative, you can let her watch as you hit the delete key as often as necessary to erase any trace of her existence in your office.

For my money, I’ll side with those who say yea. Patients are entitled to rely on a professional opinion so that they can either accept or reject a contemplated course of therapy. It is easy to imagine that the patient is a 10-year-old with ectopically erupting canines that radiographically have the potential to cause injury to the roots of the lateral incisors. In that case, if a doctor were to say that it is fine to watch the condition without further treatment, and if it was determined that a doctor-patient relationship existed, and in time the lateral incisors were to suffer resorption as a result of the ectopias, then the parent could conceivably bring a claim against the practitioner, and that claim would be based solely on the professional recommendation that no treatment was required at that time. This is the scenario that our reader described: an initial consultation. If through expert testimony the jury determined that the doctor breached his duty to conform to a given standard of care, one requiring some type of intervention, then liability could attach. I know it’s a lot of “ifs,” but that’s what makes it risk management.

Aside from the civil law considerations, there are administrative rules and regulations that must be considered in our scenario. Every state dental practice act or public health law has some provision for how long medical records must be kept. The records comprise all photographs, radiographs, models, clinical examination data, and clinical notes. A patient’s records also include all communications between the doctor and the patient, including legal guardians, as well as all communications between the doctor and any relevant third parties, such as other concurrently treating practitioners and third-party payers. As the legally recognized records custodian, the doctor is required to adhere to these rules and regulations or suffer the consequences of possible administrative sanctions against his license. Therefore, no practitioner can acquiesce to a patient’s demand that her records be destroyed.

All in all, I think there is no question as to the action our reader must take. The patient must gently but firmly be told that given the legal constraints associated with the practice of orthodontics, her records cannot be destroyed.