This article by Donnaline Richman, Esq., and Marilyn Schatz, Esq., from Fager Amsler Keller & Schoppmann, LLP (FAKS), was originally printed in our Fourth Quarter 2021 issue of The Scope: Dental Edition.  Please note that FAKS has been dissolved and MLMIC’s in-house law firm is now May-Skinner Law Group.

This past year, New York experienced some very destructive weather. Dentists and other professionals have unfortunately been affected, particularly by flooding. MLMIC Insurance Company and the attorneys of Fager Amsler Keller & Schoppmann, LLP have received telephone calls inquiring about how to deal with the loss of electronic and paper dental records that have been damaged or destroyed by floods and other types of storms.

Additionally, there has been an increase in inquiries regarding the loss of records from the infection of an electronic dental record system due to a ransomware attack. These types of attacks, recently detailed in the Q2 issue of The Scope, have resulted in either a permanent loss of dental records or a required payment of the requested ransom to regain access. Such predicaments may well be due to a dentist’s failure to back up the electronic record system on a nightly basis, the inability to do so due to improper setup of the backup system or an employee inadvertently infecting the system with malware.

When dental records have been damaged or lost by accident, natural disaster or criminal computer compromise, prompt and appropriate action must be taken to mitigate the damage and/or loss. Immediate remedial measures must be undertaken for the benefit of patients, as well as the dentist and the practice, as these losses may involve records from many years of treatment.

Records Retention Guidelines — Statutes of Limitation

Unfortunately, because of the various statutes of limitation to commence a lawsuit, nonexistent or incomplete dental records can severely compromise the validity of an otherwise defensible case.

Until recently, there were only three ways to prolong or toll the statute of limitations. The first exception is continuous treatment, which allows a patient to commence a dental malpractice action within two and a half years from the last date of treatment for the same problem. When the dentist treats a patient for the same condition that gave rise to the alleged malpractice claim, the statute of limitations does not begin to run until either a) the termination of the professional relationship, or b) the physician no longer treats the patient for that condition. Some courts have held that the statute does not begin to run until the time of the patient’s last appointment, even if the patient did not keep the appointment. The date of last treatment may also include the date of the last prescription given to a patient. Continuous treatment does not include “examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient’s condition.”

Another exception to the statute of limitations is a retained foreign body. When a malpractice action is based upon a “foreign body” unintentionally left in the plaintiff’s body, “the action may be commenced within one year of the date of such discovery or of the date of the discovery of facts which would reasonably lead to such discovery, whichever is earlier.” A “foreign body” does not include a prosthetic aid or device or a broken instrument. It must be something introduced into the patient’s body by the dentist that was not meant to be retained in the patient’s body.

There is also an exception to the two-and-a-half-year statute of limitations for fraudulent concealment of an injury or cause of the injury. This extends the statute to one year from the date of discovery of the fraud or the date when, by the facts known, the fraud reasonably could have been discovered.

Several years ago, however, the New York legislature passed yet another exception to the statute of limitations. Lavern’s Law was named after a patient whose cancer was not diagnosed within the normal statute of limitations. This law provides that if a lawsuit is based on the alleged negligent failure to diagnose cancer or a malignant tumor, whether by act or omission, the lawsuit must be commenced within two and a half years of when the patient knows or reasonably should have known of the alleged negligent failure to diagnose or knows or reasonably should have known that such alleged negligent failure has caused injury, whichever is later. However, the lawsuit must be commenced within seven years of the alleged negligent failure to diagnose the cancer. Thus, a dentist’s failure to diagnose an oral cancer would be subject to the statute of limitations contained in Lavern’s Law.

If a patient is an adult (18 years of age or older), a two-and-a-half-year statute of limitations is applicable for the patient to initiate a dental malpractice action. The statute of limitations on behalf of a patient who is a minor (under age 18) expires when the patient reaches age 20.5, with a maximum time limit of ten years. However, a dentist’s record retention obligations may extend even longer than the statute of limitations.

In general, we recommend that all dental records of adults be retained for at least seven years from the last date of treatment. However, if a dentist accepts federal insurance such as Medicare or Medicaid for the patient’s dental care, an action may be commenced for filing a false claim for up to ten years. To capture all the above-described time periods, we now recommend that all records for adult patients should be retained for ten years from the date of last payment. Records of minor patients should be retained for ten years from the date of last payment or until the minor reaches age 22, whichever is longer.

Due to these lengthy record retention time periods, the impact of a fire, flood or other act of nature, or a criminal invasion of a practice’s computer system, can seriously impede the ability of a dentist to retrieve records to provide future dental care or assist in the defense of a dental professional liability lawsuit. In addition, when a professional’s office becomes a disaster area due to fire or flood, the harm often extends beyond patient records to include financial records, models and other dental information, as well as dental equipment, furnishings and computer hardware.

Establishing New Records

It can be difficult to try to recreate all the lost information to establish a new record. The information that must be obtained includes the patient’s medical and dental history, medications, allergies and consultations with other dentists or specialists. The record should also contain relevant financial and insurance information. One good source of such information may well be the patient’s dental insurer, which may be able to provide information from a patient’s prior dental visits.

When a patient’s dental record is recreated, it must be clearly documented that it is a new record from a variety of sources due to damage or destruction of the original record. This notation will provide justification for failure to maintain original records for the required time frame. It will also serve as evidence in a dental professional liability lawsuit that records were not falsified.

Any disaster resulting in the loss of paper records because of where and how they were maintained/ stored or failure to properly back up electronic records can be very stressful, frustrating and devastating to a dental practice. However, the difficulties and challenges can be made more manageable by following not only the above recommendations but also those received from insurance, salvage and computer companies. In addition, it is advisable to notify MLMIC about the loss of, or damage to, dental records. A MLMIC Underwriter should also be informed if a dental office must close for business during the retrieval or restoration process.

If you would like to read other information for dentists, visit our resource pageVisit our blog to read more advice from legal experts, as well as tips for new dentists, industry news and case studies. Follow us on Twitter and LinkedIn for the latest updates.