DISPATCH MAGAZINE ARTICLES

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1 PROFESSIONAL LIABILITY PROGRAM DISPATCH MAGAZINE ARTICLES DENTAL RECORDS Altering Dental Records Don t Go There! Daily Progress Notes: Details Make the Difference Proper Procedures and Appropriate Safeguards for Dental Records When a Dentist Passes Away Dental Records Storage and Recovery of Damaged Records The Importance of a Complete Medical History WORKING WITH OTHER ORAL HEALTH PROFESSIONALS Dentists and denturists working together under one roof How do dentists and denturists work together to provide implant-supported dentures? Questions about providing an order for the performance of orthodontic procedures Responsibilities for patient care in principal-associate arrangements DEALING WITH PATIENTS Defending Your Reputation The Difficult Patient: Don t Ignore the Warning Signs Handling the Difficult Problem of Dismissing a Patient Patient Selection Ignore Red Flags at Your Peril Treating Non-Resident Patients PLP ASSISTANCE Release and Transfer of Records Patient Records: Transfer and Release RISK MANAGEMENT Top Five Steps to Avoid a Lawsuit or Complaint What you need to know about liability for invasion of privacy ADVERSE EVENTS OOPS! Accidents, Procedural Mishaps and Other Untoward Events Can Happen to You! College Code of Ethics Consistent with New National Disclosure Guidelines Disclosure of Adverse Events and Apologies in Dental Practice Considering Making a Refund? Call PLP First! Will PLP assist me if I am sued for an employee s act or omission? PRIVACY Sharing Personal Health Information for Health Care Purposes Patient Centred Care: A dentist s paramount responsibility What Price Perfection? The personal and professional costs of being too hard on yourself COMMENTING ON THE CARE OF OTHER DENTISTS Making Comments about Another Colleague s Work My Patient is Unhappy with Another Dentist s Work Should I Call PLP? Acting as an expert: Another way of giving back The Circle of Care Concept in Action in The Dental Office Context Privacy Commissioner expects health sector to encrypt all health information on mobile devices: Nothing short of this is acceptable Best practices for the secure destruction of personal health information 04/14_3585

2 OUNCE OF PREVENTION Altering Dental Records Don t Go There! Scenario #1 Dr. A received a statement of claim alleging that he failed to properly diagnose and treat periodontal disease for a longstanding patient, Ms. M. He immediately called the Professional Liability Program to report the matter and was advised to send his records to PLP. While reviewing the dental records in preparation for sending them off, Dr. A discovered that there was no periodontal charting and no record that he had informed the patient about her periodontal health. The treatment notes contained only brief descriptions of the services rendered and the fees charged for each visit. Dr. A recalled discussing Ms. M s condition with her on several occasions and suggesting a referral to a periodontist, which the patient refused. However, there were no entries about this in the chart. Dr. A realized that the records did not put him in the best light. So he decided to retroactively make them more complete. He added some additional information, using the same ink colour. He assumed that no one would notice, and even if they did, he doubted that the repercussions could be any worse than what would happen if he submitted the original records. 28 QUESTIONS ABOUT A PARTICULAR SITUATION? If you have questions about how to handle a particular situation with a patient, do not hesitate to call the College. PLP Claims Examiners Practice Advisory Service ENSURING CONTINUED TRUST DISPATCH AUGUST/SEPTEMBER 2011

3 OUNCE OF PREVENTION Scenario #2 Mr. C lodged a complaint with the College about his former dentist, Dr. R. He had some crown work done about one year earlier and it was now failing. According to Mr. C, his new dentist had advised him that the teeth in question were not suitable for the type of treatment rendered and that conventional bridgework or implant supported crowns should have been presented as more viable treatment options during the informed consent process. As soon as he received the letter of complaint from the College, Dr. R reported the matter to PLP on a precautionary basis due to the possible financial implications of the case. Then Dr. R began preparing a letter to the College in order to respond to Mr. C s concerns. On reviewing the patient s dental records, Dr. R found that they were silent regarding the treatment option discussion taking place. Since he seemed to recall part of the discussion, he added p.s. patient cannot afford bridgework or implants to the records to justify the treatment that had been rendered. Unfortunately for Dr. R, it was very obvious that this entry was added afterward. In fact, he even used a different type of pen than used for the other entries on the same date. Scenario #3 Ms. J wrote a letter to her dentist, Dr. P, alleging she had been negligent by failing to adequately diagnose and treat her during the 30 years she had been in her care and that her new dentist had advised her that she needed extensive restorative treatment. On reviewing Dr. P s records, PLP staff were encouraged to see numerous chart entries reflecting Ms. J s failure to attend dental appointments, her refusal to have x-rays taken, her poor oral hygiene despite numerous discussions regarding its importance and her refusal to have decayed teeth treated. Because of the completeness and thoroughness of the records, PLP believed there was a very good defence in this case. However, Ms. J denied that any of this had happened. Defence counsel was retained, a Statement of Defence was filed, and the litigation process commenced. It was not until after the discovery process that Dr. P eventually confessed to having rewritten the entire chart to include notations of missed appointments and general lack of compliance. Of course, PLP had no choice but to settle the claim with Ms. J. KEY POINTS Altering records is about the worst thing that a dentist can do to cause damage to his or her defence in a malpractice claim or complaints investigation. While it is difficult to defend a dentist who has inadequate records, it is almost impossible to successfully defend a dentist who alters the patient s records, especially since a dentist s credibility is almost as important as that of a supportive expert witness. Judges and juries will likely equate someone who alters a record to someone who has something to hide or, even worse, someone who does not tell the truth. If the experienced claims examiners/adjusters at PLP suspect that dental records have been altered by the dentist, every attempt is made to settle the matter rather than risk exposure of these alterations to the scrutiny of the patient s lawyer. It is important to note that the courts may even award punitive or exemplary damages in cases where the patient s records have been altered. Punitive damages are damages awarded to reform or deter the professional from pursuing a course of action, not to compensate the patient. The key point to remember is that these punitive damages are not covered under the malpractice policy. COLLEGE CONTACT Dr. Judi Heggie Dental Claims Advisor ENSURING CONTINUED TRUST DISPATCH AUGUST/SEPTEMBER 2011

4 OUNCE OF PREVENTION DAILY PROGRESS NOTES Details Make the Difference Professional, ethical and legal responsibilities require that detailed patient records documenting all aspects of each patient s dental care are maintained. A crucial component of a patient s record is the daily progress notes. This feature is prepared to offer guidance to members about the prevention of malpractice claims or complaints and the lessening of the magnitude of an existing claim or a complaint. COLLEGE CONTACT Dr. Judi Heggie Dental Advisor, PLP Progress notes describe the treatment rendered for a particular patient. However, in addition to a concise and complete description of all services rendered, the progress notes should also document all recommendations, instructions, advice given to the patient and any discussion with the patient regarding possible complications and/or outcomes. C/C DNS Chief complaint Did not show In general, dental progress notes usually contain adequate information about treatment rendered. However, there is often little or no recorded detail of discussions with the patient regarding his/her treatment. Dentists often comment that it is too time consuming to document details of discussions with patients. Remember that short forms are acceptable provided the dentist is able to provide a key to the short forms. This article presents some examples of good progress notes for a number of dental procedures and a description of the importance of each entry. To assist in the understanding of the chart entries, explanations of the short forms used in the examples are shown on this page. EN IC LA MB MHNC MHU N/A NALM NIS NP O/E PD PE PT Q R/C RD S/N WCU Endodontist Informed consent Local anaesthetic Mandibular block No change in medical history Medical history unremarkable Next appointment No answer, left message to call Not in service New patient On examination Periodontal disease Periodontist Patient told Questions Risks/possible complications Rubber dam Short notice Will call us 28 DISPATCH November/December 2010 Ensuring Continued Trust

5 OUNCE OF PREVENTION CASE #1: ENDODONTIC FILE SEPARATES IN CANAL During endodontic treatment, an endodontic file separated in a lower molar. From the progress notes, it was clear that the patient was adequately informed of the separated file and of the recommendations and possible consequences associated with it. DAILY RECORD ENTRY Aug. 16/ ml Lido (1:100,000 epi) MB; RD Cont d RCT tx 46. Filed D to 21mm. File sep in MB canal. Unable to bypass. PT file separated, unable to seal canal, should see EN for file removal and finish RCT. PT if EN can t remove file, might need surgery. Pt agreed. Refer to Dr. GP appt. made for Sep 8, 3pm. Record entry clearly shows the patient was informed that: A file had separated in a canal. The endodontic treatment could not be completed. Referral to an endodontist was necessary for the removal of the file. Additional treatment might also be required. CASE #2: CONSULTATION FOR WISDOM TEETH EXTRACTION Below are the details of a consultation appointment where extraction of teeth 18 and 48 is contemplated. The progress notes clearly show that informed consent for the extractions was obtained. DAILY RECORD ENTRY June 16/10 MHNC; C/C: pain O/E: 48 partially erupted, pericor. PA impacted, tipped M against 47. Roots not close to mand. canal. Recom exo 48, 18. Disc d optn: leave as is but 48 will not erupt due to position. Symptoms will persist, inf n may develop. If leave 18, will likely overerupt. Disc d procedure, R/C, as per 8 s IC form, provided cost est. No Q. IC obtained. N/A: 4u exo 48, 18 LA Record entry clearly shows that: The extraction of 48 was necessary. The patient was warned of risks and possible complications of surgery. Options were discussed, consequences of no treatment were discussed and a consent form was provided. The treatment procedure was discussed. Costs were discussed. Informed consent was obtained. DISPATCH November/December

6 OUNCE OF PREVENTION DAILY PROGRESS NOTES Details Make the Difference CASE #3: NON-COMPLIANT PATIENT WITH PERIODONTAL DISEASE This is an example of a non-compliant periodontal patient. The progress notes, over an 18 month period, clearly show that the dentist informed the claimant of his poor oral health, warned him of the consequences of periodontal neglect, and tried to convince the patient to schedule appointments for treatment and to see a periodontist for evaluation. DAILY RECORD ENTRIES Feb 3/09 Feb 24/09 March 25/09 Sept. 24/09 Oct. 27/09 April 30/10 June 4/10 Aug. 15/10 MHNC; Perio exam: Mild-mod bone loss in BWs, deep pockets esp post. OH poor. OHI. Discussed PD. PT needs referral to PE. Will think about it. N/A 4u scale S/N cancel n. WCU to rebook. Called pt. Busy at work right now. WCU when not so busy. MHNC; C/C want check-up. Reminded did not come back for cleaning. Ging. puffy, red, deep pockets in post. PT must come back ASAP for cleaning and needs to see PE. Expln d if PD not brought under control bone loss will likely con t. and teeth could be lost! Promises to book hyg appt. today. No show for hyg. appt. Called NALM. Pt. presents on emerg. C/C pain 46. PA.-bone loss to furc n. Told pt MUST see PE. Pt agreed. Refer to Dr. S for complete eval. Dr. S office called. Pt. DNS. Called pt. Forgot. WCU to rebook. TCF Dr. S. Pt. did not rebook appt. Called pt. Home #NIS Called work, no longer works there-moved to BC. Record entries show that: Complete periodontal charting was done. The patient was advised of periodontal condition. The patient was referred to a periodontist. The patient was told of consequences of failure to treat periodontal condition. Patient was non-compliant. Claims often arise when a patient, who has been non-compliant and who has periodontal disease, becomes the patient of a new dentist. When the second dentist advises the patient of his or her poor periodontal condition, the patient looks for someone to blame. Detailed progress notes demonstrate that the patient was aware of his/her condition and is responsible for the periodontal deterioration that occurred over time. 30 DISPATCH November/December 2010 Ensuring Continued Trust

7 OUNCE OF PREVENTION Deep Restoration DAILY RECORD ENTRIES Oct. 12/09 NP emerg. MHU. C/C pain to sweet, cold LL (points to area). PAdeep recurrent decay 35D, no PA path. PT decay very close to nerve, may need RCT. If RCT, post/core/crown also nec. If no RCT other option is exo. PT RCT not always successful, may need add l tx and/or surg. Pt understands, wants RCT if nec. Discussed costs of all. 1.8 ml lido (1:100,000epi) MB; RD, Deep DOV decay but no exposure. X liner and Y comp. PT decay very deep, RCT may still be req. Call if symptoms. Nov. 2/09 Emerg. C/C spont. pain 35, up all night last night. O/E 35 P+++, C+++. Dx: irrev. pulpitis PT needs RCT as disc. last appt. PT can start today. 1.8 ml lido (1:100,000 epi) MB; RD, pulpectomy. File to 1PA NAOCl, dried. Closed with cotton, cavit. N/A 3-u complete RCT 35 Record entries show that: The initial treatment was required. The patient was told decay was deep and RCT might be required. The tooth subsequently became symptomatic and RCT was necessary. The option of extraction was discussed. The patient was told post/core/crown would be required following RCT. The patient accepted revised treatment plan. IN CONCLUSION Courts usually take the view that if there is nothing in the chart to support a dentist s contention that a certain action took place, e.g. patient informed of certain risks, then that action is deemed not to have taken place. For this reason alone, it is vitally important that all interaction with patients discussion, information provided, advice/ instructions given, treatment recommended or performed, etc. be clearly set out in the progress notes and that all entries be dated and attributable to the treating practitioner. The examples given in this article demonstrate that it is relatively easy to record detailed, accurate and timely progress notes that will serve you in good stead if or when a complaint is lodged or a lawsuit commenced. QUESTIONS ABOUT A PARTICULAR SITUATION? If you have questions about how to handle a particular situation with a patient, do not hesitate to call the College. PLP Claims Examiners Practice Advisory Service DISPATCH November/December

8 PROFESSIONAL PRACTICE Proper Procedures and Appropriate Safeguards for Dental Records When a Dentist Passes Away 28 When a dentist dies, what is the responsibility of his/her estate to retain patients dental records? Under privacy legislation and the regulations made under the Dentistry Act, 1991, the dentist who is the owner of a dental practice is deemed to be the custodian of his/her patients dental records. When a dentist passes away, the estate trustee or the person who has assumed responsibility for the administration of the deceased dentist s estate assumes responsibility for retaining the dental records until the records can be transferred to another dentist. If my estate is able to find another dentist to transfer the records to, how should patients be notified of the change of ownership of the records? The College s Practice Advisory on Change of Practice Ownership and the guidelines and checklist from the Information and Privacy Commissioner/Ontario provide guidance on how to deal with this situation. The notification of the change of ownership of the dental records can either be done by the estate trustee or by the dentist who has assumed ownership of the dental records. Under the Personal Health Information Protection Act, a patient s health records can be transferred to a successor if the health information custodian makes reasonable efforts to give notice to the patient before transferring the records or, if that is not reasonably possible, as soon as possible after transferring the records. If the estate trustee finds a dentist to assume custody and control of your dental records, that dentist will retain the records and provide copies of the records to the patients at their direction or request. Estate trustees also have obligations as health information custodians to provide access to and copies of dental records to patients as directed or requested. What sort of agreement needs to be in place with the dentist who assumes ownership of the records? The College recommends that when the ownership of a deceased dentist s records is transferred to another dentist, there be an agreement or understanding that: The records will be retained for the retention period described in the College s Guidelines for Dental Recordkeeping. The records will be available to the previous dentist s estate should they be required in the case of a complaint or claim. ENSURING CONTINUED TRUST DISPATCH FEBRUARY/MARCH 2012

9 PROFESSIONAL PRACTICE If the estate trustee is not able to find another dentist to transfer the records to, is there anyone else the records can be transferred to? The only regulated health professional who can be a successor health information custodian for dental records is another dentist. On the death of the dentist, it is the responsibility of the estate trustee, or the person who has assumed responsibility for the administration of the deceased dentist s estate, to arrange to transfer the custody and control of the dental records to another dentist. If this is not possible, they need to be transferred to a person whose functions include the collection and preservation of records of historical or archival importance, provided that the person who assumes responsibility for the records fulfills the requirements set out in the Personal Health Information Protection Act. If, in the meantime, a patient requests in writing that his/her records be transferred to their new dental practitioner, it is permissible for the estate trustee to transfer the original dental records to that dentist. The College advises that there be an agreement as above regarding the retention of records and access in the case of a complaint or a claim. I am preparing my will and want to know whether I can leave my private dental practice, including my patient records, to my spouse. No. While non-dentists can own dental office premises, supplies and equipment, non-dentists cannot own dental records or profit from the practice of dentistry. The conflict of interest sections of the professional misconduct regulations made under the Dentistry Act, 1991, which dentists must abide by, prevent non-dentists from employing dentists, having dentists as associates, or being partners with dentists. For these reasons, the non-dentist members of the family or the estate of a deceased dentist cannot own and operate the dental practice of a deceased dentist or employ dentists to provide care to patients for the long term. The College does allow the estate trustee limited time (no more than one year) to sell a deceased dentist s practice following the death of the dentist and to enlist a locum to provide urgent and ongoing dental care to patients until the dental practice is sold and dental records transferred to another dentist. The College advises that it is usually best to arrange for another dentist s assistance in operating the practice and to have the practice valuated as soon as possible. MORE INFORMATION Practice Advisory on Change of Practice Ownership - College website at Guidelines on Dental Recordkeeping College website at How to Avoid Abandoned Records: Guidelines on the Treatment of Personal Health Information, in the Event of a Change in Practice - Information and Privacy Commissioner/Ontario website at Checklist for Health Information Custodians in the Event of a Planned or Unforeseen Change in Practice - Information and Privacy Commissioner/ Ontario website at COLLEGE CONTACT Dr. Lesia Waschuk Practice Advisor, Quality Assurance ENSURING CONTINUED TRUST DISPATCH FEBRUARY/MARCH 2012

10 PROFESSIONAL PRACTICE Dental Records Storage and Recovery of Damaged Records How long do I have to keep dental records? The required retention period depends on the age of the patient. For adult patients, dental records must be retained for at least 10 years after the date of the last entry in the record. For a child, dental records need to be kept for 10 years after the child reaches or would have reached the age of 18. I don t have room in my office to store all of my archived records. Can they be stored off-site? Yes. The only proviso is that privacy legislation requires that dental records of patients must be stored in secure premises to prevent unauthorized access. You must also take reasonable steps to protect the records from theft and damage from fire or flood. This might mean, for example, storage in waterproof plastic bins with lids. 26 It is also recommended that stored records be kept in a systematic fashion so they can be easily retrieved if the patient returns to the practice or if they are needed for another purpose. ENSURING CONTINUED TRUST DISPATCH FEBRUARY/MARCH 2012

11 PROFESSIONAL PRACTICE If I decide to store my archived records offsite, do I need to notify my patients or former patients? It is not necessary to notify patients if the records are archived in the basement of the dental office or in some other area controlled by the dentist. However, if the records are moved to premises that are not under the control of the dentist, such as a private record storage facility, provincial privacy legislation requires that patient consent be obtained before the records can be stored in such a facility. There was a flood/fire in my dental office and my dental records were destroyed. What do I have to do? The first step is to see which records can be retrieved or salvaged. There are companies that specialize in recovery/ reconstruction of paper records and data recovery for electronic records. Your general liability or office overhead insurance policy may cover some of these costs. As for electronic records, the College does recommend that they be backed up on a routine daily basis and stored in a physically secure environment off-site. In addition, your recovery procedures should be periodically tested to ensure that all patient records and critical data can be retrieved and reliably restored from the backup copy. Do I need to notify patients that their records were damaged or destroyed? The College advises dentists to notify patients currently in treatment and other active patients about what has occurred and what records may need to be recreated. For example, this might include examinations or radiographs or other diagnostic records and medical histories required to provide sufficient information to deliver safe and appropriate dental care. Patients can be notified verbally, by posting a notice in the office, or in writing. Should I notify the College of this mishap? If your records have been destroyed by fire or flood, you can notify the College that this has occurred. This information could be helpful if later on there is an investigation of a complaint or a lawsuit (claim) filed against you. In any report that you might make, you should describe the steps that you have taken to salvage or reconstruct the dental records and what records are remaining; for example, electronic records of treatment provided in the patients financial records. Your notification should be in writing and you can request that it be placed in your permanent file. These files are retained indefinitely at the College, even after you are no longer registered or are deceased. COLLEGE CONTACT If the system cannot be restored from a backup copy, it may be possible to recover data from a damaged hard drive. Dr. Lesia Waschuk Practice Advisor, Quality Assurance ENSURING CONTINUED TRUST DISPATCH FEBRUARY/MARCH 2012

12 OUNCE OF PREVENTION The Importance of a Complete Medical History Every year, PLP receives reports of claims or potential claims in which inadequate medical history-taking and/or failure to update a patient s medical history have been pivotal factors in the treatment outcome. The following scenarios involving inadequate history-taking that lead to serious consequences illustrate the importance of medical histories to providing safe and appropriate dental care. 32 ENSURING CONTINUED TRUST DISPATCH FEBRUARY/MARCH 2012

13 OUNCE OF PREVENTION SCENARIO 1 Mr. H presented to his dentist, Dr. B, regularly for 12 years. He required very little dental treatment, other than routine cleanings. After scaling had been completed at a recall appointment, Mr. H mentioned to Dr. B that he d had a diseased heart valve replaced with a prosthetic one four months earlier. Dr. B explained the importance of premedication to Mr. H and prescribed antibiotics to be taken prior to his next appointment. Eight months later, Mrs. H called to say her husband had passed away. An autopsy confirmed that her husband had developed prosthetic valve endocarditis (PVE), reportedly caused by the dental cleaning. DISCUSSION In reviewing Dr. B s records, PLP staff had the following concerns: While there was a medical history form in the record, completed on Mr. H s initial appointment with Dr. B, QUESTIONS ABOUT A PARTICULAR SITUATION? If you have questions about how to handle a particular situation with a patient, do not hesitate to call the College. PLP ADVISORS there was no evidence that the claimant s medical information had ever been discussed or updated after that. It was clear from the records that the discussion about Mr. H s prosthetic heart valve occurred after the scaling appointment, not before. Having discovered that the patient had a prosthetic heart valve and had just undergone dental cleaning, Dr. B took no immediate action, such as consulting with Mr. H s cardiologist, referring him back to his physician, or immediately prescribing a post-exposure regimen of appropriate antibiotics PRACTICE ADVISORY SERVICE SCENARIO 2 Ms. S presented to Dr. A on an emergency basis for extraction of an infected tooth. Dr. A extracted the tooth under local anesthetic and he told Ms. S she should make an appointment for a new patient examination. She said she would do so. A week later, Ms. S s son called to report that his mother had developed a serious infection and was in hospital on IV antibiotics. DISCUSSION In reviewing Dr. A s records, PLP staff had the following concerns: The medical history questionnaire form used by Dr. A did not include important questions that would elicit critical information in assessing a patient s true medical status. There was no evidence that Dr. A had reviewed the scant medical history with Ms. S or that he had investigated her positive responses to Do you have any illnesses or medical conditions? and Do you take any medications? There was no evidence that the tooth needed to be extracted. Dr. A hadn t taken an x-ray. There was no information in the records about why the tooth required extraction, although Dr. A said the tooth was severely broken down and non-restorable. Unfortunately, this was not documented. There was no evidence of any discussion about the risks and benefits of extraction or the alternatives. There was no informed consent for treatment. There was no evidence that Ms. S was provided with any post-operative instructions, verbal or written, or that she was told to call the office if she experienced any complications. Review of Ms. S s full medical records demonstrated that she was severely medically compromised. She was a very poorly controlled Type II diabetic and was suffering from many complications of the disease. Because he failed to investigate the positives on the medical history form, Dr. A was not aware that Ms. S was a poorly controlled Type II diabetic on insulin. Further, he did not know that she needed specific instructions post-operatively or that she probably required prophylactic antibiotics. 33 ENSURING CONTINUED TRUST DISPATCH FEBRUARY/MARCH 2012

14 OUNCE OF PREVENTION LEARNING POINTS Understanding the relationship between oral and general health is an essential component in providing safe dental care. Treating the medically compromised patient requires that the dentist be knowledgeable about medical diseases and conditions and familiar with the implications of medications used to treat these diseases. It also requires the ability to assess the significance of these diseases before, during and after dental procedures. On our website at the College provides members with a Medical History Recordkeeping Guide comprised of four parts: the Medical History Questionnaire Companion; a sample of a Medical History Questionnaire; a patient information pamphlet entitled When it Comes to Your Medical History, Tell Your Dentist Everything ; a sample Recall History Questionnaire. The Companion section of the guide points out that a medical history questionnaire can be worthless if the dentist cannot interpret the answers and, when necessary, seek out and obtain additional information. The questionnaire provides a starting point to elicit information from the patient. It assists the clinician in identifying a patient whose medical history is uncomplicated, and whose treatment may be conducted safely with a minimum of treatment modifications. The questionnaire can also assist in identifying a patient whose medical history is complex or clouded, and when further information is needed to clarify any positive or unclear responses before initiating care. Additional information may be acquired through a dialogue with the patient and by conducting an appropriate physical examination (head, neck and intra-oral examination, and taking and recording vital signs) and/or consultation with the patient s physician. In Scenario 2, had Dr. A discovered that Ms. S had diabetes, there were a number of follow-up questions he should have asked. The Medical History Questionnaire Companion explains that, when it is determined that a patient suffers from diabetes, the dentist needs to establish the type and severity of the disease and the presence of complications, which are often related to the duration of the disease. For example, diabetic patients are more likely to suffer from atherosclerotic heart disease, kidney disease, blindness, xerostomia, periodontal disease, burning mouth syndrome, and to have problems related to impaired healing and infection. As important as it is to be able to appropriately interpret the medical history questionnaire and to investigate the positive responses, it is equally important that the medical information is updated and followed-up on a regular basis. Two methods can be helpful to ensure the medical history is updated and the information is accurate. One is to have the patient review the information previously obtained and advise the dentist of any changes. The other is to ask specific questions of the patient. On page 11 of the Medical History Questionnaire Companion there is a list of appropriate questions to be asked at recall appointments and also a sample abbreviated Recall History Questionnaire. 34 COLLEGE CONTACT Dr. Judi Heggie Senior Dental Consultant, Professional Liability Program ENSURING CONTINUED TRUST DISPATCH FEBRUARY/MARCH 2012

15 Release and Transfer of Records 28 QMy patient says that she has paid for the x-rays and is entitled to them. Can I give these to her? What the patient has paid for is the diagnostic services that you have provided on the basis of the radiographs and the regulations require you to retain these. Your patient is entitled to diagnostic quality copies of the radiographs. If someone else arrives to pick up the patient s records from your office, you should ensure that you have the patient s consent to release them to this person. QCan the patient pick up their dental records or have these mailed to their home? Yes, the patient can pick up copies of their dental records from your office or request that these be mailed to their home. Most dentists have the patient sign in the patient s record that they have received the records if the patient picked up the copies. If someone else arrives to pick up the patient s records from your office, you should ensure that you have the patient s consent to release them to this person. The patient can indicate this in advance with their signed consent. QMy patient wants to pick up the records of their children who are at university. Is this permitted? While there is no legal age for consent to the release of health information, the College and the Information and Privacy Commissioner of Ontario consider that age 16 is a reasonable age. This means that in most cases, parents can request and are entitled to copies of the dental records of children up to 15 years old. However, you will require the ENSURING CONTINUED TRUST DISPATCH FEBRUARY/MARCH 2011

16 consent of children 16 and older to release records to their parents. You should contact the children to ensure that you have their consent to release the copies of their records to their parents. QIf I do not have a duplicator or processing solutions because I have switched to digital radiography, can I give the patient original film radiographs? Because dentists are required to keep original records, the easiest way to comply with your legal requirement to provide patients with copies of the dental records that they request is to have facilities to make copies in your office. If you no longer have processing solutions, you could investigate how to scan film images to convert these to digital files. Then you could send these electronically with appropriate privacy safeguards, or provide them to the patient on a CD or USB key. Alternatively, you could arrange to have the radiographs duplicated; for example, at a faculty/school of dentistry. QDoes the request have to come from another dentist? No. Dentists will often help their patient to request their dental records from another dentist, but the request can also come directly from the patient. Patients have the right to have copies of their records. While the College suggests that patients put their requests in writing, indicating what they would like to have copied and where they would like the records to be sent, the dentist does not require consent to release information from a patient s record to the patient. Dentists require the patient s consent to release information to someone other than themselves and the College advises written consent in most cases. QWhat if the written request doesn t specify which records are required? If the request is very general, you could contact either the patient or the dentist to whom the records will be sent to find out what is required and whether there is an appointment booked or other urgent need for the dental records. QI have purchased a dental practice and a patient would like his notes from the previous owner s dental record. Am I required to provide this to him and does it make a difference whether or not I have treated the patient? In the sale of a dental practice, typically the purchaser assumes the legal responsibility to retain patient records as required by the regulations. This means that the purchaser has to keep the originals and provide copies to the patients, if requested. If a patient continues treatment at the office, whether or not the same charting format is used, the patient s record will normally be considered a continual record. You have to retain the records for adult patients until at least 10 years after the date of the last entry in the patient s record and for children, until s 29 ENSURING CONTINUED TRUST DISPATCH FEBRUARY/MARCH 2011

17 Release and Transfer of Records 30 at least 10 years after they turn 18. You should not give patients their original record until the legally required retention period has ended. QMy patients are having difficulty obtaining copies of dental records from another dental office. How can I help them? You can assist your patients by preparing a request for the release of information that specifies which records the patient requires copies of, your office address, and indicating if this is where the records are to be sent. The patients should sign these requests. Note that children 16 years of age or older should sign the requests for their own dental records. QMy associate has left the office and has sent out a notification to patients. If the patients decide to follow him, do I have to provide the associate with the patients records? If you receive a written request that is signed by the patient directing you to do so, you should provide copies of the dental records to the associate. The associate is not entitled to the patient s original records, unless that is in accordance with a written contract, for example, an associate agreement where the associate is the designated owner of specified patient records, or if there is a written agreement between the dentists specifying that, at the end of the associateship, the transfer of original records with the consent or written direction of the patient takes place so that the associate assumes the responsibility to retain these as required by the regulations. The College does not provide legal advice and dentists should consult with their own lawyer before entering or executing such agreements. QCan I charge the patient for the duplication of dental records? According to the College s Practice Advisory on the Release and Transfer of Patient Records, you can pass on any out-of-pocket expenses incurred in duplicating and releasing records. This could include mailing costs, charges from a dental laboratory or radiograph duplicating facility, and materials costs. This cannot include an administrative fee for your staff time. QWhere can I get more information? The Guidelines for Dental Recordkeeping and the Practice Advisory on the Release and Transfer of Patient Records are available on the College website at under Professional Practice. COLLEGE CONTACT Dr. Lesia Waschuk Practice Advisor ENSURING CONTINUED TRUST DISPATCH FEBRUARY/MARCH 2011

18 PRACTICE CHECK Patient Records: Transfer and Release COLLEGE CONTACT Dr. Don McFarlane Q: Who owns the dental records, the patient or the dentist? Dentists are required to retain original patient dental records for ten years after the last entry in the chart. Patients are entitled to see their records and to receive copies. Q: If I receive a request from a patient for copies of his/her records or receive written authorization by the patient from another dental office, must I comply? Failing to provide copies of patient records and radiographs when requested by a patient or her or his authorized representative may be considered as professional misconduct under the Dentistry Act, A Supreme Court of Canada decision also stated that patients either have the right of access to their health records at a time convenient to the practitioner or they are entitled to be provided with copies of their health records, including copies of radiographs. Q: Are patients entitled to their original dental records? No. The dentist must keep the original records but the patient can have copies. Q: What would be considered a reasonable time frame for providing copies of patient records? The professional misconduct regulations made under the Dentistry Act,1991 speak to the transfer of records and/or reports within a reasonable time. It is the College s view that, in most cases, this should be accomplished within one to two weeks of receipt of the request. The College also recommends that dentists use personal delivery, a courier service or registered mail to ensure that the records safely reach their destination. Q: A patient has requested to have the records sent to his/her home, rather than to the new dentist. Is it acceptable to do this? A patient can give direction as to where he or she would like the records sent. They do not necessarily have to be sent to a dental office only. Q: What records should normally be provided? If a patient or his or her lawyer request copies of all dental records and radiographs, you DISPATCH November/December

19 PRACTICE CHECK Transfer and Release of Patient Records must comply with this request. However, if the request is not specific, the most useful records would be current x-rays and the most recent full mouth survey/panoramic view, and a copy of the current treatment plan and progress notes. Q: Is it permissible to levy a charge for the duplication of patient records? It is the College s view that in fulfilling his or her legal and professional obligations to forward records and/or reports that have been requested by a patient or agent, a dentist may consider charging a fee consistent with the direct costs incurred in doing so. This fee would include the costs of photocopying paper records, duplication of x-rays or models and transfer costs. An administrative fee for this service is not considered appropriate. The College recognizes that, in some cases, the burden to members to provide records justifies cost recovery. In others, a dentist may choose to provide copies of records as a professional courtesy as assessing such a fee might further inflame an existing conflict with a patient. Q: Can a dentist refuse to comply with a patient s request for the transfer of his/her dental records to a new dentist until the outstanding account balance has been paid? No. The release and transfer of records is a professional responsibility and unrelated to whether or not the patient still owes the dental office any money. Dentists have other mechanisms available to them to recover unpaid balances. Q: If the police come to the dental office requesting the release of dental records of a particular patient of the practice, must I comply with this request? You cannot release any patient records without the authorization of the patient or his/her authorized representative, i.e. parent, guardian, legal representative, trustee, or as required to do so by law. In order for a dentist to be able to comply with the police officer s request, the officer would have to produce a Coroner s Warrant or a court authorized Search Warrant. Without such written authorization, the dentist would be unable to comply. In this situation, it might be wise to contact the College s Practice Advisory Service at or toll-free at for assistance. Q: Where can I get more information? The College s Practice Advisory on the Release and Transfer of Patient Records can be found on the RCDSO website at by clicking on Professional Practice in the navigation bar on the left-hand side of the home page, and then on Practice Advisories in the drop down menu. 54 DISPATCH November/December 2008 Ensuring Continued Trust

20 OUNCE OF PREVENTION TOP FIVE STEPS to Avoid a Lawsuit or Complaint This feature is prepared to offer guidance to members about the prevention of malpractice claims or complaints and the lessening of the magnitude of an existing claim or a complaint. COLLEGE CONTACT Dr. Judi Heggie Dental Advisor, PLP Dr. Bert Greene is a general practitioner in a busy dental office. A patient, Wendy Smith, attended at his office complaining of severe pain in tooth 27. After examining her, Dr. Greene recommended root canal therapy. He explained the treatment and discussed the other options. Ms. Smith chose to go ahead with root canal therapy and Dr. Greene initiated treatment on the same day. Very early in the procedure, a file separated in the middle third of the mesiobuccal canal. Dr. Greene made no attempts to remove or to bypass the separated file. Instead, he proceeded to complete the treatment, obturating the palatal and distobuccal canals fully and obturating the mesiobuccal canal in the coronal half of the canal only, up to the level of the separated file. He charged Ms. Smith the full fee for endodontic treatment of a tooth with three canals. A week later, Ms. Smith attended at another dentist s office complaining of pain and this dentist discovered the separated instrument and informed Ms. Smith. This situation could quickly escalate into a complaint filed about Dr. Greene to the College or the commencement of a lawsuit. However, there are a few precautions that could have been taken to decrease the chance of a complaint or lawsuit. 42 DISPATCH November/December 2008 Ensuring Continued Trust

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