LITIGATION AND LEGISLATION UPDATE Litigation and legislation of particular hlterest to orthodontists will be reported under this section of the AMERICANJOURNALOF ORTHODONTICSAND DENTOFACIAL ORTtIOPEDICS. Manttscripls for publication atzd readers' comments may be submitted to Ms. Sally A. Bowers, American Association of Orthodontists, 401 N. Lhulbergh
Bh'd., St. Louis, MO 63141.
The patient's records and the defense of dental malpractice claims Donald R. Morin*
Charlottesville, Va.
More than 90% of all cases, including medical and dental malpractice cases, are disposed of before trial. They may be dismissed or settled, but most of them fall by the wayside along the way to trial. Trial attorneys like to think that the only cases they try are those in which they have a reasonable chance of success. In assessing their chances of success at trial, one of the foremost considerations is whether their evidence will be credible to a jury. Credibility is the most significant factor in the outcome in all cases and especially malpractice cases. One criterion by which credibility is judged is the dentist's ability to persuade the jury that he is competent. One measure of competence is the ability to chart and document treatment. Lay people are not expected to keep records of what they have done. On the other hand, dentists are expected and required to keep records. Unlike a lay person, a dentist is charged with the responsibility of not being able to forget because a dentist must have a permanent written record of what occurred. And if the dentist has not kept that record, then the dentist and his attorney must be aware that the case will be a difficult one to defend. The examples are endless. If a dentist is being sued because he failed to inform the patient of the risk of a procedure or the availability of alternative procedures and the dentist insists on the stand that he told the patient of the risks and alternative procedures, plaintiff's attorney will ask, "Doctor, where is it in your records?" Similarly, after 3 years of treatment, including several difficult restorations, a patient claims that she developed TMJ symptoms including clicking, popping, pain and headaches. Subsequently, she has a discectomy. The patient files suit claiming that the dentist's treatment caused her TMJ problems. The dentist claims that the patient had these symptoms at the beginning of treatment and that, in fact, he tried to refer the patient
to a TMJ specialist, but the patient refused. Unfortunately, the doctor's records lack a good initial history or examination findings and there is no mention in the record regarding the referral to a TMJ specialist. Without this documentation, the jury will be most inclined to side with the patient. This has happened too many times in too many cases to ignore. We have been in court too many times trying to defend a health care provider's word against an injured patient with no records to support the provider's testimony. We have also had the good fortune to be at trial with very good and complete records. We would much rather try a case with good records because the chance of successfully defending those cases is much higher. This experience leads us to conclude that juries will base their decision on the credibility of the witnesses they hear and the dentist's credibility will be judged to be lacking unless his records are complete. There are four things you should put in each and every record: 1. Your patient's complaints; 2. Your examination findings; 3. Your impression or diagnosis; 4. Your treatment plan. If these things are noted in your records it will bolster your credibility before the jury because you have discharged your duty to keep good and accurate records. It will make it difficult for patients to testify against you if they know you have written documentation to support your version of the treatment rendered. It will make it difficult for a plaintiff's attorney to take a case against you because his expert witness will be confronted with your records and will have to manufacture a way around them. These observations were recently reinforced by the Missouri Board for the Registration of Healing Arts in the "Healing Art News (Mar. 1991)." In that newsletter, 569
570
Litigation and legislation update
Am. J. Orthod. Dentofac. Orthop. December 1992
the Board published a reprint from the Virginia Board of Medicine. It supports my thoughts regarding what should be in a health care provider's record. After a notice of a claim or suit has been filed, the patient's record in its entirety should be separated from the other files in your office. It. should be kept in a secure place with access only to the dentist or with limited access to other staff members. The purpose of this is to preserve the record and to insure that it is not inadvertently lost, destroyed, or altered. Once a notice of claim or lawsuit is filed, the dentist will usually begin receiving letters from his insurance carrier or his defense attorney. This correspondence and all other documentation regarding the lawsuit or claim should be kept in a separate file from the records. This separate or "litigation" file is also to be kept in a secure place with access only to the dentist. A lawsuit may last 2, 3, or even 4 years. During that time a great deal of material will be sent to you and the appropriate place for it is in the litigation file. It is separated from the patient's records because you do not want to inadvertently reveal any of this information to a third party. How long should you keep your records? The statute of limitations for filing a claim varies from state to state. Usually, there is a difference in the statute of limitations for an adult and a minor. For instance, in the State of Virginia an adult has 2 years from the date the alleged negligence occurred in which to file a claim whereas a minor under the age of 8 years has until his tenth birthday to bring an action (Virginia Code w167 243 and 243.1). In addition, most states have a different statute of limitations for cases in which the alleged negligence results in death. In Virginia for this type of claim, referred to as a wrongful death claim, the personal representative of the deceased has 2 years after the death of the injured person in which to bring the claim unless a claim had already been filed during the life of the deceased party (Virginia Code w In Missouri, the statute of limitations in a wrongful death case is 3 years from the date of death of a patient. You should contact your attorney or medical malpractice insurer to determine the applicable statute of limitations in the state in which you practice. In Virginia, we recommend that at a minimum an adult patient's records be kept for 3 years after the last date of treatment and that a minor's records be kept until at least the minor's 12th birthday or 3 years after the last treatment of a minor, whichever date is later. Please note that there are exceptions to the statute of limitations that may extend the statute beyond the usual period of time. For instance, in the State of Virginia the statute of
limitations is extended to 1 year from the time a foreign object left in the patient's body is discovered or should have been discovered, or in cases in which fraud, concealment, or intentional misrepresentation prevented discovery of an injury, it is extended to 1 year from the discovery of the injury. In neither case, however, is the statute of limitations extended for more than 10 years from the date of the original injury. Who is entitled to keep the original records? The general rule is that the records belong to the health care provider creating them, but the patient is entitled to a copy of his record when a written request is submitted to the health care provider and on payment of a reasonable fee for the copying of the records. Again, however, each state may have a different rule. In the State of Virginia, the providing of copies of a patient's record is governed by statute. (See Virginia Code Section 8.01-413 B and C.) Usually, the state statute provides for a specific manner in which the request must be made by the patient, a time limit by which the request must be honored by the health care provider, and the payment of a reasonable fee to the health care provider. There is also usually a provision for the assessment of damages against the health care provider who does not comply with the statute. The Virginia statute provides that if the health care provider "wilfully or arbitrarily" refuses to provide the records or imposes an excessive charge for the records, the court "may award damages for all expenses incurred by the patient to obtain such copies, including court costs and reasonable attorney's fees." In a recent case in the State of Missouri where there is also a statute providing for the obtaining of records from a health care provider, but without a specific penalty to be assessed against a health care provider for refusing to provide the records, the Missouri Court of Appeals held that the patient could sue the physician for failing to comply with the statute. (See Wear v. Walker, 800 S.W.2d 99 (Mo. 1991).) The most noteworthy part of this decision was the court's finding that if the health care provider's action in withholding a copy of the records was attributable to the health care provider's "evil motive or reckless indifference" to the right of the patient to obtain a copy of his record, then the patient is entitled to punitive damages. In summary, your documentation must be clear, complete, and accurate. Armed with appropriate documentation, not only will you be prepared to defend a claim in court, but you may also prevent the actual filing of a suit or claim. At the very least, appropriate documentation should improve patient care, lessening the likelihood of a suit or claim being filed.
Bh'd., St. Louis, MO 63141.
The patient's records and the defense of dental malpractice claims Donald R. Morin*
Charlottesville, Va.
More than 90% of all cases, including medical and dental malpractice cases, are disposed of before trial. They may be dismissed or settled, but most of them fall by the wayside along the way to trial. Trial attorneys like to think that the only cases they try are those in which they have a reasonable chance of success. In assessing their chances of success at trial, one of the foremost considerations is whether their evidence will be credible to a jury. Credibility is the most significant factor in the outcome in all cases and especially malpractice cases. One criterion by which credibility is judged is the dentist's ability to persuade the jury that he is competent. One measure of competence is the ability to chart and document treatment. Lay people are not expected to keep records of what they have done. On the other hand, dentists are expected and required to keep records. Unlike a lay person, a dentist is charged with the responsibility of not being able to forget because a dentist must have a permanent written record of what occurred. And if the dentist has not kept that record, then the dentist and his attorney must be aware that the case will be a difficult one to defend. The examples are endless. If a dentist is being sued because he failed to inform the patient of the risk of a procedure or the availability of alternative procedures and the dentist insists on the stand that he told the patient of the risks and alternative procedures, plaintiff's attorney will ask, "Doctor, where is it in your records?" Similarly, after 3 years of treatment, including several difficult restorations, a patient claims that she developed TMJ symptoms including clicking, popping, pain and headaches. Subsequently, she has a discectomy. The patient files suit claiming that the dentist's treatment caused her TMJ problems. The dentist claims that the patient had these symptoms at the beginning of treatment and that, in fact, he tried to refer the patient
to a TMJ specialist, but the patient refused. Unfortunately, the doctor's records lack a good initial history or examination findings and there is no mention in the record regarding the referral to a TMJ specialist. Without this documentation, the jury will be most inclined to side with the patient. This has happened too many times in too many cases to ignore. We have been in court too many times trying to defend a health care provider's word against an injured patient with no records to support the provider's testimony. We have also had the good fortune to be at trial with very good and complete records. We would much rather try a case with good records because the chance of successfully defending those cases is much higher. This experience leads us to conclude that juries will base their decision on the credibility of the witnesses they hear and the dentist's credibility will be judged to be lacking unless his records are complete. There are four things you should put in each and every record: 1. Your patient's complaints; 2. Your examination findings; 3. Your impression or diagnosis; 4. Your treatment plan. If these things are noted in your records it will bolster your credibility before the jury because you have discharged your duty to keep good and accurate records. It will make it difficult for patients to testify against you if they know you have written documentation to support your version of the treatment rendered. It will make it difficult for a plaintiff's attorney to take a case against you because his expert witness will be confronted with your records and will have to manufacture a way around them. These observations were recently reinforced by the Missouri Board for the Registration of Healing Arts in the "Healing Art News (Mar. 1991)." In that newsletter, 569
570
Litigation and legislation update
Am. J. Orthod. Dentofac. Orthop. December 1992
the Board published a reprint from the Virginia Board of Medicine. It supports my thoughts regarding what should be in a health care provider's record. After a notice of a claim or suit has been filed, the patient's record in its entirety should be separated from the other files in your office. It. should be kept in a secure place with access only to the dentist or with limited access to other staff members. The purpose of this is to preserve the record and to insure that it is not inadvertently lost, destroyed, or altered. Once a notice of claim or lawsuit is filed, the dentist will usually begin receiving letters from his insurance carrier or his defense attorney. This correspondence and all other documentation regarding the lawsuit or claim should be kept in a separate file from the records. This separate or "litigation" file is also to be kept in a secure place with access only to the dentist. A lawsuit may last 2, 3, or even 4 years. During that time a great deal of material will be sent to you and the appropriate place for it is in the litigation file. It is separated from the patient's records because you do not want to inadvertently reveal any of this information to a third party. How long should you keep your records? The statute of limitations for filing a claim varies from state to state. Usually, there is a difference in the statute of limitations for an adult and a minor. For instance, in the State of Virginia an adult has 2 years from the date the alleged negligence occurred in which to file a claim whereas a minor under the age of 8 years has until his tenth birthday to bring an action (Virginia Code w167 243 and 243.1). In addition, most states have a different statute of limitations for cases in which the alleged negligence results in death. In Virginia for this type of claim, referred to as a wrongful death claim, the personal representative of the deceased has 2 years after the death of the injured person in which to bring the claim unless a claim had already been filed during the life of the deceased party (Virginia Code w In Missouri, the statute of limitations in a wrongful death case is 3 years from the date of death of a patient. You should contact your attorney or medical malpractice insurer to determine the applicable statute of limitations in the state in which you practice. In Virginia, we recommend that at a minimum an adult patient's records be kept for 3 years after the last date of treatment and that a minor's records be kept until at least the minor's 12th birthday or 3 years after the last treatment of a minor, whichever date is later. Please note that there are exceptions to the statute of limitations that may extend the statute beyond the usual period of time. For instance, in the State of Virginia the statute of
limitations is extended to 1 year from the time a foreign object left in the patient's body is discovered or should have been discovered, or in cases in which fraud, concealment, or intentional misrepresentation prevented discovery of an injury, it is extended to 1 year from the discovery of the injury. In neither case, however, is the statute of limitations extended for more than 10 years from the date of the original injury. Who is entitled to keep the original records? The general rule is that the records belong to the health care provider creating them, but the patient is entitled to a copy of his record when a written request is submitted to the health care provider and on payment of a reasonable fee for the copying of the records. Again, however, each state may have a different rule. In the State of Virginia, the providing of copies of a patient's record is governed by statute. (See Virginia Code Section 8.01-413 B and C.) Usually, the state statute provides for a specific manner in which the request must be made by the patient, a time limit by which the request must be honored by the health care provider, and the payment of a reasonable fee to the health care provider. There is also usually a provision for the assessment of damages against the health care provider who does not comply with the statute. The Virginia statute provides that if the health care provider "wilfully or arbitrarily" refuses to provide the records or imposes an excessive charge for the records, the court "may award damages for all expenses incurred by the patient to obtain such copies, including court costs and reasonable attorney's fees." In a recent case in the State of Missouri where there is also a statute providing for the obtaining of records from a health care provider, but without a specific penalty to be assessed against a health care provider for refusing to provide the records, the Missouri Court of Appeals held that the patient could sue the physician for failing to comply with the statute. (See Wear v. Walker, 800 S.W.2d 99 (Mo. 1991).) The most noteworthy part of this decision was the court's finding that if the health care provider's action in withholding a copy of the records was attributable to the health care provider's "evil motive or reckless indifference" to the right of the patient to obtain a copy of his record, then the patient is entitled to punitive damages. In summary, your documentation must be clear, complete, and accurate. Armed with appropriate documentation, not only will you be prepared to defend a claim in court, but you may also prevent the actual filing of a suit or claim. At the very least, appropriate documentation should improve patient care, lessening the likelihood of a suit or claim being filed.
