Answers to Dentists’ FAQs About Dental Records: A Legal Perspective

Feb 13, 2023

As a dentist, you strive to provide excellent patient care, and an important part of that is keeping up-to-date dental records that are comprehensive and maintained safely and confidentially.

Why are dental records so important?

• Good dental records help dentists provide the best care to patients, first and foremost.
• Dental records are important for future dental benefit claims.
• Dental records are vital for responding to liability claims.

As a dental professional, good documentation helps protect you, your patients and your practice. Here are some of the most frequently asked questions about dental records.

Why is the appearance of the dental record so important in a malpractice dispute?

The dental record is the actual record of treatment provided to the patient, and its appearance is extremely important to your defense. It specifically describes the complete history, evaluation, diagnosis, treatment and care of a patient. Therefore, it is of maximum value in terms of its accuracy and credibility, especially when used in legal proceedings.

Remember, if you didn’t document it, you didn’t do it. The dental record should be precise, neat, complete and legible, and it should be written so that any other dentist who has a reason to review the record knows exactly what has been done for the patient, when it was done and why.

How do I appropriately document the paper dental record?

Entries in the dental record must be contemporaneous with treatment and should be written legibly in ink or transcribed. Be sure to use a consistent style for your entries. If your records are ever challenged in court, consistency will impart credibility to your records and will demonstrate your professionalism in maintaining them. You must accurately record both positive and negative findings, and enter the time and date of all entries, signing each one. All entries should follow sequentially. Do not leave any spaces between them.

If an incorrect entry is made in a paper record, you may strike it out by drawing a single line through the entry, write the word “error” and initial and contemporaneously date the correction. Do not, under any circumstances, use white-out or erase an entry. Both techniques suggest you have something to hide. Each correction should be made as it happens with an explanation for the correction to preserve the record’s integrity. Be sure to record missed appointments and any failure by the patient to accept or follow instructions. This type of information will be helpful in defending a future court action.

If you have an electronic dental record, go to the next entry line and make a note dated that day and refer in this note by date to the erroneous entry and make the correction that you wish to have replacing the original entry. Since attorneys are very sophisticated and can use metadata to show that you have changed or eliminated an electronic note, this is the way to properly amend such an incorrect electronic note and yet not be deemed to have altered the record.

Always be sure to record your observations in an objective and dispassionate manner. The dental record is not the place to settle disputes, assign blame or write derogatory remarks. Such superfluous entries seem to communicate a lack of professionalism and may raise doubts about the record’s overall credibility.

If you are using an electronic dental record, many of the same principles of documentation apply. Use of templates is more frequent; all entries may be time-stamped, and signatures are electronic.

Should the treatment plan be in writing?

Yes, it should be in writing and a copy should be given to the patient after it is discussed, and all the patient’s questions have been answered. A copy should also be scanned into the patient’s electronic dental record.

What other important items must be documented?

At every visit, document that you checked the patient’s mouth for oral cancer and that there were no signs or symptoms of oral cancer. This is particularly true with the passage of Lavern’s Law which has extended the statute of limitation to sue for malpractice to seven years for failure to diagnose cancer. Further, it is critical for you to also document that you checked for periodontal disease and what you found.

How long must I retain dental records?

All patient records must be retained for at least six years, with the exception of records for minor patients, which must be maintained for at least six years and for one year after the minor patient reaches the age of 21, whichever is longer. It is, however, recommended that dental records be retained for 10 years from the date of receipt of the last claim for payment. The longer time period is recommended in light of state and federal statutes and regulations pertaining to malpractice and offenses, such as insurance fraud.

What documents do I need in order to release dental records to someone other than a patient?

If you are a HIPAA-covered entity, you may release patient information to third parties for purposes of treatment, payment or healthcare operations without a written patient authorization. Under New York law, however, patient consent is required to release information even for those purposes. You may obtain the patient’s general consent to release information for treatment, payment and healthcare operations as part of your normal registration process.

In order to disclose protected patient information to third parties for other purposes, you must have a written HIPAA compliant authorization form signed by the patient or by an individual legally authorized to sign on the patient’s behalf. The authorization must be dated and must designate the name of the party who is authorized to release a copy of the record and to whom the records are to be released. A release that states “to bearer” is not acceptable. The authorization form must state the reason for the authorization (“at my request” is sufficient) and must specify the dental information to be released (e.g., “all my records”). Each authorization form must contain an expiration date or event. In addition, HIPAA requires that certain statements be included in each authorization form. Thus, you must confirm that the authorization form is HIPAA compliant and that it contains all the required elements.

You should compare the patient’s signature on the authorization form to his/her signature in your records. If there appears to be a discrepancy, you have the right to request that the signature on the authorization be notarized. If the patient is not the person who signed the authorization, then a copy of a legal document permitting the designee to sign the authorization must be also obtained. These may include, for example, guardianship papers, a copy of a power of attorney, a death certificate (if applicable), a copy of healthcare proxy or a copy of documents from the surrogate’s court appointing the person as administrator or executor of a deceased patient’s estate. In unusual circumstances, such as those concerning custody or divorce, patient incompetence or death, you should contact your attorney to discuss how to proceed.

What type of information requires specific or special authorizations to release the dental record?

Any dental records containing HIV-related information require a specific and special authorization, or you can redact (cover up) that information from the record when making a paper copy. Most HIPAA-authorization forms include a line where initials may be added if HIV-related information is authorized for release.

Should I write an addendum to office dental records many days, weeks or months after the patient has been treated?

The general rule is that an addendum should be timely-generally within 42-72 hours after the patient has been seen and should contain information relevant and necessary to the patient’s present and/or future care and treatment. Never write an addendum weeks or months after a patient has died or after an attorney or government agency has requested the records. Any addendum that does not meet these criteria may be considered self-serving or even deemed an alteration of the record.

If it is necessary to write an addendum to a patient’s record, indicate the date of and reason for the supplementary information. Remember that accurate recordkeeping is vital, not only while providing good patient care, but also because carefully maintained records offer a credible and accurate defense in court. Any record that appears to have been altered for the purpose of covering up an error or to improve the record for litigation completely lacks credibility.

Keeping updated and accurate dental records should be a priority.

As you can see, maintaining complete, accurate and timely dental records is essential for the provision of good patient care and to protect yourself and your practice. Making sure you have accurate and current documentation helps you as a dentist and builds trust between you and your patients.

As always, we want to be a resource to you. If you ever have a question about dental records, MLMIC policyholders can contact a team of risk management professionals 24/7 at no additional cost by calling (844) 667-5291 or emailing hotline@tmglawny.com.

Dental professionals can stay up to date on the latest risk management guidance and alerts by reading The Handbook for Practicing Dentists, monitoring the MLMIC Dental blog, The Scope: Dental Edition and Dental Impressions and following us on Twitter and LinkedIn.