Destroying records

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.

Commentary

I hear this more and more. It seems that there are ever-increasing instances of patients trying to dictate treatment in one form or another. From something as simple as “I’ve decided not to go ahead with treatment, so destroy my records” to “I don’t want any x-rays taken” to “I don’t want any periodontal treatment now—just go ahead with the orthodontics” to “yes, I know my bite is off, but all I want is to have my front teeth straightened” to “I can only bring Johnny in after school hours” and so on.

Some patients think that because they are the ones paying for treatment, they can have what they want. Others, because they have always been told “yes” throughout their lives, think that they can have whatever they want. Yet others think that because they have done enough Internet research, they know what is best. I’m sure there are other rationalizations as well. These scenarios often put today’s practitioner between a rock and a hard place. Oh, what to do, what to do?

In the civil arena, one court stated that “if a physician is ever justified in withdrawing when it is apparent that to do so must result in injury, it can only be where the patient obstinately refuses to follow the treatment prescribed.” Another court held that “the patient voluntarily submitted himself to and insisted upon medical care. Simultaneously he sought to dictate to [his] treating physicians a course of treatment amounting to medical malpractice…. The patient may knowingly decline treatment but he may not demand mistreatment.” In another case, it was noted that “If a patient fails to come to the office … and then fails to return to the office for further treatment … he is not entitled to maintain an action against the physician, because it is his own default and misfeasance.” It has also been recognized that “A physician is entitled to protect his ability to generate an income and need not accept … a patient who cannot pay the established fee charged all patients”; and in addition, that “Abandonment was not established … [when the physician’s bookkeeper] told [the patient] she was no longer a patient because she had not paid her bill.” In addition, courts have stated that “a patient has a duty to respond accurately and truthfully to all questions posed to him.” And finally, courts have opined that practitioners have “no legal obligation to continue providing … treatment to an unruly and uncooperative patient” (all cits. omitted).

These opinions by various courts around the country reflect common “problems” that orthodontists face and provide us guidance as to a common solution. Each “problem” noted above is an instance when the patient has breached a duty that patients owe us under the doctor-patient relationship. They must follow instructions, they cannot unreasonably dictate treatment, they must keep their appointments, they are obligated to pay for services rendered, they must truthfully respond to all valid administrative and clinical inquiries, and they must conform to accepted modes of behavior. When they breach these duties, we have a right, which is different from an obligation, to terminate the doctor-patient relationship if we adhere to a legally recognized and established protocol. Terminating the doctor-patient relationship in specific situations—dealing with problem patients—is one of the most valuable risk management techniques we have in our practice management arsenal.

However, the civil arena is merely one gladiatorial venue in which we find ourselves. Another is the administrative arena. When the state board of dentistry comes a callin’ and wants to take some action against our license because we have acted in contravention to any of a multitude of regulatory rules and regulations governing the practice of dentistry—eg, not taking and keeping a patient’s records—we had best look sharp and pay heed. This is one contest you don’t want to fight if you can help it. Forget about the fact that you don’t have malpractice insurance to cover any fine levied. Forget about the fact that you will often have to cover your own legal expenses. Forget about the time out of your office and the lost production. Forget about the negative publicity, since many state boards publish the results of disciplinary hearings. Forget about all of that. The only thing to remember is that if you lose whatever this fight is about—and the odds are stacked against you—you may, depending on the infraction, lose your license and hence the ability to support yourself and your family in the manner to which you have become accustomed. If you take away anything from this article, take away the message that it’s not worth it—ever. Never screw around with the state dental practice act; the potential cost is far too dear.

So, let’s go back to our reader’s question of whether he should acquiesce to the patient’s demand and destroy her records. Destroying her records may only lead to a path of self-destruction. As Pogo said, “We have met the enemy, and he is us.”

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Apr 6, 2017 | Posted by in Orthodontics | Comments Off on Destroying records
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