The Scope: Dental Records and Liability Protection – A Defense Attorney’s Perspective

Feb 16, 2021

This article on dental records and liability by John W. VanDenburgh, Esq., of the firm Napierski, VanDenburgh, Napierski & O’Connor, LLP, was originally printed in our First Quarter 2021 issue of The Scope: Dental Edition. Read more articles from the publication here.

As a lawyer for more than 30 years, I have represented dentists who have been sued for dental malpractice and who have been investigated by the New York State Office of Professional Discipline (OPD) for alleged misconduct. I also have the privilege of being a presenter for the New York State Dental Association Risk Management Program. In my experience, the single most important factor in successfully defending a lawsuit or protecting a dentist’s license is good recordkeeping by the dentist. Legal concerns aside, good records also improve the quality and consistency of patient care.

Part 29 of the Compilation of Codes, Rules and Regulations of the State of New York entitled Unprofessional Conduct states that unprofessional conduct includes: “Failing to maintain a record for each patient which accurately reflects the evaluation and treatment of the patient. Unless otherwise provided by law, all patient records must be retained for at least six years. Obstetrical records and records of minor patients must be retained for at least six years, and until one year after the minor patient reaches the age of 21 years.” If a dentist fails to maintain a record that accurately reflects the evaluation and treatment of the patient, that dentist has arguably engaged in unprofessional conduct. With respect to defending a lawsuit by a patient alleging dental malpractice, the issue is whether the treatment, or absence of treatment, complied with the accepted standards and practices of the dental profession.

Sometimes the treatment at issue occurred years ago and the patient was only one of many in a busy practice. If the dentist has not maintained a record that accurately reflects the evaluation and treatment of that specific patient, it will be difficult to demonstrate to a judge or jury that the treatment provided by the dentist was in accordance with the accepted standards and practices of the dental profession. That is especially true when the patient’s recollection of what occurred during the treatment differs from the recollection of the dentist. Accurate and complete records, prepared at the time of the treatment, are the most objective and reliable way of establishing what happened at the time.

During risk management presentations, I emphasize that the most important tool for defending malpractice claims or disciplinary actions is a quality treatment record. A quality record that accurately reflects the evaluation and treatment of the patient contains the following:

• An accurate and current patient history, including the purpose of the visit and the patient’s complaints, if any.
• The nature and scope of the clinical examination, as well as documentation of any significant findings, either positive or negative.
• Documentation of any diagnostic images recommended. If the images are taken, any significant findings, either positive or negative, should be documented. If the patient refuses any images, or other treatment recommendations for that matter, including referral to a specialist, the record should document the recommendation made, the reason for the recommendation, that the recommendation was thoroughly discussed with the patient and that the patient refused.
• The record should reflect the dentist’s assessment of the patient, including any diagnosis or the identification of any conditions requiring treatment (a treatment plan).
• If the patient agrees to a treatment plan, that plan should be documented, including the fact that informed consent for such treatment was obtained. If that treatment is performed, the record should document the treatment rendered, including, among other things, the type and quantity of anesthetic. If medication is prescribed, the name and dosage of the medication should be documented. For procedures requiring x-rays taken before, during and/or after the procedure, the taking of the x-rays should be documented. In short, the documentation should be sufficient for a dentist unfamiliar with the patient to be able to determine from a review of the record alone what treatment was provided and why.
• Referrals to any specialists such as endodontists, periodontists or oral surgeons should be clearly documented, and the dentist should have a procedure in place to follow up with respect to the outcome of those referrals, including the determinations and recommendations made by such specialists.
• Separate records should be kept with respect to billing, and care should be taken to ensure the procedures billed for were performed and that the billing records match the patient treatment record.

In conclusion, a patient’s dental chart provides strong documentary evidence, created at a time contemporaneous to the treatment and before the specter of litigation or disciplinary action ever occurred, that will support, sometimes years after the fact, a dentist’s position that the treatment rendered was at all times professional in nature and comported with the accepted standards and practices of the dental profession.