Is seeing believing?

One of our readers wrote the following.

I routinely use a “light” version of Photoshop to print and digitally store photos of my patients. I also use it to reduce the photos to a size that permits me to put all of them on a page of glossy photo paper. I routinely try to increase the brightness and occasionally the contrast of the photos so that the starting and finish photos are as identical as possible. Recently, we had a patient come to the office to have her braces removed. I had started the case two and a half years earlier and then almost immediately the family moved. Apparently, things didn’t work out for them, and they moved back to town. The patient received no orthodontic treatment while she was away. Upon her return, she came to the office to have her braces removed. Her periodontal condition was a disaster! Her gums had grown down over the crowns of the teeth and were swollen and bleeding. I cleaned everything up, and my assistant took x-rays, models, and photos. After the patient had been discharged, I reviewed the photos only to find that the gums had bled quite a lot while the photos were being taken. I used utility for substituting nearby pixels to “remove” some of the blood so that the teeth could be clearly seen. My questions are:

  • 1.

    Is what I did reasonable? Ethical? My intention of course was clarity, but I did alter the images.

  • 2.

    I probably don’t have the proficiency but assuming I did or asked someone to help, would it be proper to perform a “digital gingivectomy” to show more clearly the crowns of the teeth?

Commentary

Since we are talking about the alteration of a patient’s records, to whatever degree, let’s first look at what dental records are, what they are used for, and how they get admitted into evidence. After that, we can answer the writer’s questions.

Every state has some form of a dental practice act. These statutes, rules, and regulations govern the practice of dentistry from an administrative perspective. One commonality among all jurisdictions is that doctors are required to keep records on a patient that accurately describe the treatment rendered. This includes diagnostic records as well. A patient’s dental record serves as a basis for (1) diagnosing the patient’s condition, (2) determining a viable treatment plan to address the patient’s condition, (3) describing the treatment actually rendered to effectuate the treatment plan, (4) recommending any follow-up therapy needed relative to the patient’s condition, and (5) maintaining the continuity of the patient’s care.

In addition, a patient’s dental record provides documentary evidence of (1) the evaluation and diagnosis of the patient’s condition, (2) the treatment plan and the patient’s informed consent regarding the plan, (3) all treatments rendered and referrals recommended, (4) any follow-up care rendered or recommended, and (5) any and all communications with or regarding the patient, all relevant third parties (eg, parents, guardians), any third-party payers (eg, insurance carriers, Medicaid), and other health care providers. The patient’s dental record also serves to protect the legal interests of all concerned parties. Finally, it provides data for continuing education, research, quality assurance, administrative functions (eg, registration, contact information), and billing and other fiscal concerns. In short, a patient’s dental record is far more encompassing that just photos, x-rays, models, and chart.

A patient’s dental record is allowed to be entered into evidence, both for you and against you, upon a ruling by the trial judge. The judge will first ensure that this proffered evidence is relevant to the issues at hand and that the records are reliable or trustworthy. For a patient’s dental record to be determined as relevant and reliable, it must first be made by a person with knowledge of the acts appearing therein. Second, the entries must be made at or near the time of the events described in the record. Finally, it must be the type of record that is routinely kept in the business being conducted. The key is whether these records are believable, trustworthy, and unquestionable. If they are not, then a reasonable person, such as a juror, can easily have significant doubts about trusting the information. If the records are not believable, trustworthy, and unquestionable, then as a defendant, the evidence I am using to bolster my defense has just gone down like the Titanic, 3D and all.

In a civil suit (getting sued for malpractice), the plaintiff needs only to prove his or her case by a preponderance of the evidence: 51%. If the plaintiff’s argument is 1% better than the defendant’s, the plaintiff will prevail. If we are talking about an administrative action (an action against a dentist by the state board), the state can succeed by also showing a preponderance of the evidence, but, in this legal arena, the rules of evidence are relaxed, and evidence that could not be used in a civil suit is often allowed to be used against a doctor. Which side wins is often based, in part, on which side has the most believable evidence. Think of it as a skirmish. The side with the most and best ammunition is most likely to prevail. You have a type of ammunition that the patient does not. You have the patient’s record. It is a memorialization of every aspect of the relationship between you and the patient.

If these records are comprehensive and of good quality, and they appear to be legitimate and unaltered, assuming you didn’t do anything wrong, you now have really good ammunition with which to bolster your defense. If their quality is bad, if they are sporadic from a temporal perspective, if they are unreadable, or if they appear to have been altered in any way, your credibility goes down the tubes. If records have been altered, very often, even if the doctor has done nothing wrong, a good defense becomes impossible because the trier of fact, the jury, will not believe anything the doctor says or any evidence he presents because of the records’ alteration. The altering of records means in its simplest terms that you are a liar, a fraud, and someone not to be believed or trusted.

So, let’s talk about our reader’s questions: is what he did reasonable and ethical? He stated that his intention was clarity. He also asked whether it was proper to perform a “digital gingivectomy” to show more clearly the crowns of the teeth. In response, my first thought is, clarity of what? When I have removed a patient’s appliances because he was allergic to his toothbrush, the intent for doing so was that, even though the patient’s case was not finished, I would rather leave the patient with crooked teeth than no teeth or badly compromised supporting structures.

Having trained over 300 residents and thousands of doctors in orthodontic risk management, I have often used our reader’s exact scenario to make the following point. The evidence you want to put into your arsenal, the bullets you want to fire, concern the patient’s degree of contributory negligence. You want to paint the picture that the patient was the bad guy, not you. You want to prove that the patient caused his own injury. Therefore, you must take pictures of the patient’s poor oral hygiene and compromised periodontal status before you remove the appliances. Show the jury that the patient came to your office suffering from “cottage cheese mouth.” Show them the horrific periodontal hypertrophy. Then, after removing the appliances, take more photos of exactly the way the relationship between gingiva and crown looks. Show them the blood. Make the jurors sick to their stomachs. When these photographic images are presented as evidence, coupled with your testimony and that of your expert, especially when supported by detailed notes in the patient’s record as to how poor oral hygiene and the patient’s failure to obtain professional supervision resulted in the periodontal destruction, the decalcifications, and the caries, forget about bullets: you just used a howitzer. Then and only then, do you pull out the images depicting the digital gingivectomy you performed to show the jury what the normal relationship between hard and soft tissues is supposed to look like.

In today’s orthodontic practice, it is not uncommon to find that the office has a tooth-brushing station. It is very common for the patient to be sent directly from the waiting room to the brushing area to get cleaned up prior to being seated. While this is all well and good from a practice management and clinical perspective, the protocol stinks from a risk management perspective. Ideally, the doctor should see the patient first and decide whether or not there exists any type of contributory negligence that should be documented. Only after appropriate documentation should the patient be allowed to “clean up,” which in essence removes the evidence you so dearly want to preserve. I know it is a small point, but in the right situation, you will find just how much instituting this little change will benefit your office’s risk management protocol.

As to the ethics of what our reader did, one must know his reason for the digital gingivectomy. The only permissible reason to alter records—and doing so requires that the unaltered images remain in the patient’s file—would be to support the principles of informed consent and beneficence. You are promoting good for the patient via educating him about the differences between good and poor oral hygiene, and informing him of the consequences as a result of his prior actions and the necessity for additional care in the future to bring him back to optimal oral health. Also, the principles of veracity and serving as the patient’s private fiduciary support the alterations but, again, only to inform the patient and educate him. If this is what our reader was attempting to clarify, fine. If the alterations were for any reason that has to do with benefiting the doctor in any way whatsoever, no way.

As my father once told me, alterations are for clothes, not dental records.

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Apr 8, 2017 | Posted by in Orthodontics | Comments Off on Is seeing believing?
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