Health Care attorney Daniel Schulte provides insight into the most common questions asked regarding dental records. The complete Q&A can be found in the Journal of the Michigan Dental Association (December 2019).
Question: Am I required to furnish patient records to a patient upon request?
Answer: The patient has a legal right to the information, but the dentist has a corresponding legal right to the documentation. The dentist should furnish a copy of the patient records to the patient and retain the original records.
Question: Am I required to furnish patient records to a person acting on behalf of a patient?
Answer: A person acting on behalf of a patient has the same right to the records as the patient, provided the person submits a consent authorizing release of the records signed by the patient. If the patient is a minor, the consent should be signed by the minor’s guardian or parent.
Question: What if the patient asks for his or her original records, not copies?
Answer: Original records should never leave the control of the treating dentist. Copies should be submitted.
Question: Could you explain the dentist-patient privilege as it relates to dental records?
Answer: Any request for a patient’s records must be approached with caution. By statute, any information relative to the care and treatment of a patient acquired as a result of providing professional dental services is confidential and privileged. This privilege belongs to the patient, not the dentist.
Therefore, as a general rule, a written consent signed by the patient or the patient’s duly authorized legal representative (not the patient’s attorney) should be received by the dentist as a condition precedent to disclosure of that information to anyone other than the patient.
There are certain exceptions to this privilege prohibiting disclosure. Some exceptions include defense of a claim challenging the dentist’s professional competence, peer review disclosures, claims for fees, certain third party payer information relating to fees and, of course, court orders. Caution dictates, however, that any third-party disclosure of patient records or information without a signed written consent from the patient should be done only upon legal advice from the dentist’s attorney.
Information relative to the care and treatment of a dental patient acquired as a result of providing dental services must be kept confidential and is privileged. Except with the consent of the patient or the patient’s attorney in fact or personal representative, a dentist or a person employed by a dentist shall not disclose such information unless the disclosure is for the purpose of treatment, payment or health care operations following your compliance with HIPAA’s privacy rule. This would require you posting a notice of privacy practices and attempting to obtain the patient’s signature on an acknowledgement of receipt of the notice.
Question: Is it necessary to obtain a patient release before displaying patient “before and after” photos or other photos of patient treatment?
Answer: Yes. The unauthorized use of a photograph of a patient for advertising or other commercial use is an invasion of the patient’s right of privacy and right to control the commercial use of his or her likeness. Any patient whose photograph will be displayed on a bulletin board or in a book, etc., must first execute a release allowing that display. Photographs of minors should be displayed only upon the receipt of a similar release executed by the patient’s parents or legal guardian.
Question: May a dentist share records or findings with another dentist to whom a patient has been referred?
Answer: Yes, if HIPPA’s privacy rule has been complied with (see the Q/A above).
Question: What if a patient steals charts or records?
Answer: Contact your malpractice carrier for guidance. It is suggested that consideration be given to writing a certified letter to the patient demanding the return of the original records and citing the law with regard to ownership of records. Retain a copy of the letter and the certified return receipt in a patient treatment chart. If the patient fails to return the chart/records, consider filing a police report. Lastly, consideration can be given to filing a civil lawsuit.
For additional information on dental records, visit the Legal Services section at michigandental.org under the Practice Management tab.
About the author:
Daniel Schulte has more than 25 years of experience helping clients solve tough problems and capitalize on opportunities that require a blend of business and legal expertise. His practice focuses on addressing the legal, business, licensing, and regulatory challenges of health care professionals, organizations, and facilities. Dan understands how legal issues impact business objectives and, as a result, offers his clients practical, results-oriented advice. He is a Certified Public Accountant, former managing partner and current executive committee member of the firm. Dan also serves as co-chair of the firm’s Health Care Practice Group.
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