How hard do I have to look for these records?

One of our readers recently wrote the following and wanted some input.

Larry: At the end of the day yesterday, the father of a long-ago dismissed patient called requesting his daughter’s records. She was debanded in 2004, and the last retainer check visit was in May 2010, when she came in with her sister. Her records are buried somewhere deep in a storage facility I keep (all of this was precomputerization). I actually haven’t been to the storage unit in years, since now everything is backed up and accessible. I called my state dental association for the law on record keeping and learned that records must be maintained for 7 years from the date of the last entry or 2 years after the patient’s 18th birthday, whichever is later. She was born in March 1992. So, since I’m not obligated to keep the records as long as I have, do I have to rummage through the storage facility to try to find them, or can I just tell the dad that I don’t have them?

Oh, one more thing. I took over the practice from a retiring orthodontist, and I saw this patient during the transition. He was the senior partner at the time. When the dad called, my office manager said that the records from the previous doctor were not on site, and it was so long ago that we might not be able to find them. Dad went nuts, screaming about how legally you have to keep the records and so on. As I said, I treated the patient’s younger sister, the case did not go well, and they transferred to another orthodontist in midtreatment, which was about the last time I saw the patient noted above. Thanks for any advice you have.

The first issue to discuss concerns how long records must be kept. The answer depends on why you are keeping them and which legal arena you are in. Our colleague called the state dental society and received the answer she did. That’s because the state dental society plays in the administrative legal arena. Every state has laws, statutory rules, and regulations that regulate how long health care practitioners are required to maintain a patient’s records. The state has determined that it is in the best interests of patients to have doctors maintain the records for whatever the statutory period for these reasons: (1) to maintain the continuity of care when the patient transfers between doctors; (2) for the state to have access to health care records to oversee the practices of providers, thus ensuring safe methodologies for the provision of the care being rendered; and (3) for evidentiary purposes if formal evaluations of claims regarding substandard care need to be investigated and subsequent sanctions considered. If you have violated any of these statutory rules or regulations, actions that may be taken against you generally range from admonishment to revocation of one’s license, with a host of penalties in between.

The other legal arena that needs consideration is the civil arena. This is where the patient, not the state, has the right to bring an action against you for negligence as well as other civil offenses. When a patient files a suit against you for malpractice, he or she must do so within a specified time period, according to the statute of limitations. If the patient does not timely file the suit, he or she will essentially forfeit that right. The time periods that apply to civil suits vary from state to state, have different triggering points for when the time period starts to run, and are also different from administrative laws in that they are usually accompanied by tolling provisions.

A tolling provision essentially extends the period of time that the patient has to initiate the suit against you. Think of it this way. There is a window of opportunity for a patient to sue a doctor. On 1 side of the window, the patient is trying to hold the window open to preserve maximum temporal access for the lawsuit. On the other side, the doctor is trying to close the window to preclude the action against him. A tolling provision is akin to finding a stick to put in the window sill, thus propping the window open and keeping it from closing. The most common provisions applicable to orthodontic practice are (1) infancy (the patient is still a minor, thus the time period will not begin to run until he or she reaches the age of majority), (2) continuing treatment (the time period will not begin to run until ongoing treatment for the patient’s condition has been completed), and (3) fraudulent concealment (the patient has been prevented in any number of ways from discovering or being able to discover that he or she has been injured: think lying, fraud, deceit, and cover up). Back to our reader.

According to the facts, the patient’s last visit was just after she turned 18. From both the administrative and civil law perspectives, we are dealing with an adult. Since the records were requested in March 2018, essentially 10 years from the date of the last visit, there is no problem from the administrative perspective; our reader is 3 years past the period of time that she was obligated to keep the records. The civil perspective, however, is slightly different.

Our reader practices in a “discovery jurisdiction.” Her state’s statute of limitations provides that the action must be brought within 2 years of the time that the patient discovers or reasonably should have discovered the injury. If she practiced in an “occurrence jurisdiction,” the time period would begin to run when the patient was injured: the occurrence. We don’t know why the patient wants the records, there many reasons: some benign and some not. So, let’s assume the worst case scenario. Suppose that our colleague injured the patient in some way: root resorption, periodontal compromise, temporomandibular joint disorder, and so on. We know that the statute of limitations has expired, and our colleague is safe, unless a tolling provision can be applied. Infancy is not one because the patient is more than 2 years past the age of majority. Continuing treatment can’t apply, since the patient is more than 2 years past the last time she was seen for anything. The only possible means of exposure would be if our colleague actively concealed from the patient that she was injured in some way. Assuming that this is not the case, our colleague should be safe from a civil suit as well.

Suppose, however, that we are optimists instead of pessimists. There are many reasons that the patient needs the records that have nothing to do with us or the treatment we rendered. Suppose she was in a car accident and suffered some significant dental injuries. She may want our finished records to reproduce a baseline from which to compute the degree of her current injury. For all we know, she could be deceased, and the records are needed for forensic identification purposes. Or, she has completed her dentofacial growth and development and now wants to address her skeletal deformity, and the new orthodontist seeks the old records, as you might in a similar situation. So, the question remains: how hard should you look for the records?

This now becomes an ethical consideration, a practice management consideration, or a potential good or bad post on the Internet consideration. So, I ask again, how hard do you look for the records?

Commentary

When I was in practice, I also had a storage facility; it was called the basement. It contained records of my dismissed patients, my father’s dismissed patients, and my grandfather’s dismissed patients. I no longer had a basement to use as a basement. My wife had to rent a storage facility for her junk—only kidding—it was a big basement. I was thrilled when the water heater broke and flooded the basement in 6 inches of hot water, and I had to dispose of a ton (literally) of ruined orthodontic records. It really happened, but I digress. Every patient we ever treated, upon dismissal, had the records placed in a numbered box. The boxes were stacked in numeric order; we kept a clipboard (my grandfather and father were most assuredly precomputer), and the top of each page had a letter: A, B, C, and so on. The patient’s name could be found accordingly, and the corresponding box number was shown. We could always find someone’s records. Sure, it was a pain in the neck, but it was and still is part of the job, not to mention a legal responsibility to which we are held.

All of the statistics show that 1 doctor of every 3 doctors will be sued at least once in his or her lifetime. To be honest, I don’t care; that’s why I carry malpractice insurance. If it’s gonna happen, it’s gonna happen. I do the best that I can and let the chips fall where they may. Knock on wood, 40 years, and it hasn’t happened yet, either in private practice or in the institutional setting. However, it’s a different world today, and when I reflect on all the things that I might have been taken to task for—and there were a few—with the litigious atmosphere today, the patient base today, and the Internet, I might not be so lucky if there were a second go around.

My advice to our colleague is to pack a picnic lunch, take the family to the storage facility, and make a day of it. Find the stupid records and while she’s at it, try to organize things a little. Plan to dispose of whatever can be disposed of. How? Call a document shredding company. There are plenty of them in every state. Have them pick up everything that’s more than 10 years old. The odds are so small that anything will be needed past that point that this approach is reasonable. Want to be super safe? Make it 15 years, but you may need a bigger storage unit.

Fortunately, this is like dealing with ancient history. Moving forward, everything will be digital and saved in the cloud forever. But turning back to present-day reality, there is just no reason to put a bur under this dad’s saddle. As long as our colleague is on solid ground vis-à-vis the statute of limitations, she should give him the records. On the other hand, if she lied, withheld, misled, or fraudulently concealed any information from the patient, which I know she didn’t, some people I know, not me of course, would advise her to have a convenient fire or flood, because there is no obligation to have maintained the records for this long. Well, at least, that’s what some people would say.

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Dec 10, 2018 | Posted by in Orthodontics | Comments Off on How hard do I have to look for these records?
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