Orthodontic records as evidence

Dr. Laurance Jerrold explains how proper recordkeeping can make a difference for legal defense

One of the more common mistakes that orthodontists make is not realizing the purpose and extent of a patient’s record. Most of the time, practitioners consider a patient’s orthodontic record to consist of the clinical findings, photos, models, X-rays, and treatment chart. As to the purpose, many believe that we are required by law to keep them, but their primary use is to show what was done on a particular visit. The reality is that they are kept and used for so much more.

Purpose of maintaining records

A patient’s orthodontic record consists of every piece of correspondence of every type as well as the clinical records noted above. The purpose of acquiring and maintaining orthodontic records is the following:

1. To enable and maintain the continuity of care both for the doctor treating the patient as well as for use by any subsequent treating practitioners.
2. To evaluate the patient and adequately diagnose their particular problem.
3. To develop a treatment plan, establish treatment goals, and develop a mechanotherapeutic plan to achieve those goals.
4. To obtain informed consent.
5. To memorialize the treatment rendered on each visit.
6. To document any referrals made and any reports received.
7. To assemble and utilize any and all communications with or regarding the patient such as the following:
   1. Intake (personal and employment) data
   2. Medical, dental, and social history information
   3. Insurance, billing, and accounting records
   4. Communications of any type with the patient, relevant third parties, and or other health care providers
   5. Laboratory appliance prescriptions
8. To document all patient educational and instructional information provided
9. To protect the legal interest of both the doctor and patient
10. To provide data for the following:
    1. Quality assurance and outcomes assessments
    2. Clinical research endeavors
    3. Administrative functions such as scheduling, internal and external marketing endeavors

Not only does orthodontic records acquisition and maintenance enable and provide for the preceding to be accomplished, but arguably its most important role is that of being able to be used as evidence in administrative (State Board of Dentistry) actions, civil (malpractice) suits, as well as in criminal (insurance fraud) cases.

You’ve seen it in countless legal movies and TV programs — some lawyer wants to introduce something into evidence, and the opposing counsel jumps up and says: “Objection your honor, hearsay.” The judge then decides to either sustain the objection thus denying the statements or writings admission into evidence, or he overrules the objection and allows whatever it is to be admitted into evidence. Why is this important? Well, think of it this way. You’ve been sued for malpractice. The cause is irrelevant; you and the patient suing you are in a war of sorts. Some of the many skirmishes that take place during this campaign are: receiving the summons and having to respond to it; both parties having to obtain expert witnesses to testify on their behalf; both parties and their experts having to undergo depositions; pre-trial motion practice; and of course, the trial itself. So far what I have outlined may seem to be fairly evenly balanced. Ostensibly, both sides have valid arguments, both sides have their experts, and both sides have good attorneys. So, is there anything you can do to give yourself an advantage over the plaintiff? How can you put more bullets in your bandolier than the patient can put into theirs? The answer is that you have your records to help defend you — if you can get them admitted into evidence.

The problem with hearsay

The Legal Information Institute at Cornell Law School defines hearsay¹ as

…an out-of-court statement offered to prove the truth of whatever it asserts, which is then offered in evidence to prove the truth of the matter. The problem with hearsay is that when the person being quoted is not present, it becomes impossible to establish credibility. As a result, hearsay evidence is generally not admissible in court.

The Federal Rules of Evidence² notes a number of exceptions to the rule thus allowing for certain types of hearsay evidence to be admitted. Rule 803, Sections 4 and 6 addresses health care practitioners and their “business records.” Rule 803(4) covers statements that are made for the purposes of medical diagnosis or treatment. Subsection 803(4)(A) states that if the statement (the writing) was made for purposes of medical diagnosis or treatment and, as per 803(4)(B), describes a patient’s medical history, their past or present symptoms, their onset, clinical signs or sensations, or belief(s) relating to the cause of their malady, then the statement (writing) may be admitted into evidence.

What constitutes a business record?

Rule 803(6) covers the actual business record itself, in our case, the patient’s chart in its entirety, provided that the writing describes:

A record of an act, event, condition, opinion, or diagnosis if:

1. the record was made at or near the time by — or from information transmitted by — someone with knowledge.
2. the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit.
3. making the record was a regular practice of that activity.
4. all these conditions are shown by the testimony of the custodian or another qualified witness.

Why are business records considered admissible evidence? For the most part, they are deemed to be trustworthy. In Timberlake v U.S. Fidelity,³ the court cited a number of different cases and noted:

…The rule cautions, however, that business records will not be admissible where ‘the source of information or the method of circumstances of preparation indicate lack of trustworthiness.’

The rationale behind the business records exception is that such documents have a high degree of reliability because businesses have incentives to keep accurate records. The business records exception is based on a presumption of accuracy, accorded because the information is part of a regularly conducted activity, kept by those trained in the habits of precision, and customarily checked for correctness, and because of the accuracy demanded in the conduct of the nation’s businesses.

If any person in the process is not acting in the regular course of business, then an essential link in the trustworthiness chain fails. It is well established that one who prepares a document in anticipation of litigation is not acting in the regular course of business. (Cits. Omit.)

Further, the court in Monotype v Int’l Typeface⁴ stated that the elements necessary for a business record to be admitted into evidence are:

A business record is admissible when (1) it is made or based on information transmitted by a person with knowledge at or near the time of the transaction; (2) in the ordinary course of business; and (3) is trustworthy, with neither the source of the information nor method or circumstances of preparation indicating a lack of trustworthiness.

The details of recordkeeping

Let’s go over these elements. New York’s Civil Practice Law and Rules 4518,⁵ Section 8.08 notes that the writing, the record, must be made by either the person who recorded the event, act, or information or by someone who had personal knowledge of and a duty to record the information accurately. If an orthodontist personally writes his or her entry into the patient’s chart, then he or she is the one with knowledge. If the assistant who performed the procedure is the one who makes the chart entry, then he or she is the one with knowledge. If the doctor performs the treatment but recites what he did to the assistant who then makes the entry into the patient’s record, then they both have knowledge. This is why the clinical notes MUST reflect who actually made the chart entry as it is that person who would have to verify that the information contained in the chart is accurate, which could occur at the deposition phase or at trial.

The “recording” (written entry) of the “transaction” (describing the treatment that was rendered) must be done at or near the time of the transaction. People v Kennedy⁶ defined this temporal component by noting that when one makes the chart entry, it must be performed at or reasonably close to the time treatment was rendered thus assuring that the recollection of the specifics of the transaction are fairly accurate. It is well accepted that because time blurs memory, to whatever degree, the closer the chart entry is to the point in time that the act occurred makes contemporaneous entries more reliable than temporally remote entries. Requiring this temporal component helps to ensure accuracy and reliability of the recording.

Aspects of “ordinary course of business”

“In the ordinary course of business” has two prongs to it. The first prong requires that the business record was kept in the course of a regularly conducted business activity. Business was defined in Hargett v National Westminster Bank⁷ as “…any business, institution, association, profession, occupation, and calling of every kind…” Orthodontics, like every other discipline of medicine or dentistry, routinely keeps a record of what diagnostic procedures were performed or data obtained, the diagnosis made, the treatment rendered, the patient’s response to the treatment rendered, a posttreatment evaluation relative to the type and duration of retention required, and the need for appropriate followup if indicated.

Keeping accurate records of the patient’s treatment is universally done to ensure continuity of care as well as reflecting what was done and the patient’s response to the intervention rendered. It’s what makes the patient’s chart, the business record, reliable since those involved in clinical practice have a legal duty to be accurate in observing and recording the treatment rendered thereby conforming to basic standard of care requirements as well as regulatory requisites.

The second prong is that making the chart entry is a “regular practice” of the business of orthodontics. We routinely keep a record of a patient’s treatment as it would be impractical if not impossible to commit to memory every diagnostic nuance of every case, every aspect of treatment rendered regarding any given case, and every discussion had or instruction given to every patient. In other words, the purpose of the business record is to allow the business in question to function properly. It is precisely because every patient’s record is kept in the manner it is, that it becomes a matter of “a necessary routine practice” resulting in the fact that the record itself becomes reliable and trustworthy.

In summary, the Kennedy opinion⁶ cited above noted that the business records exception to the hearsay rule

…was based upon the recognition that “records systematically made for the conduct of a business as a business are inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant’s obligation is to have them truthful and accurate for purposes of the conduct of the enterprise.”

How to take and keep orthodontic records

Now that we know the how and why relating to a patient’s record being admitted into evidence, we now need to turn to how to take and keep orthodontic records of a patient.

Manner of record: In days of yore, the advice was simple — whatever notation you make in the patient’s chart should be done in ink, not pencil. The reason behind this was that penciled entries could be erased and changed, but forensic science could easily detect the year a certain ink was produced.⁸ Therefore, if one wanted to rewrite their chart years later because now they were getting sued for something, it would be hard for that person to defend a 2014 chart entry made with 2018 ink. Today however most records are computerized, thus, the only admonition is that one is “locked out” after “x” period of time or at the end of the day thus precluding the ability to alter a chart’s entry in any way after that entry was made. It all comes down to trustworthiness and reliability. The legal system must be able to rely on the authenticity and integrity of the entry if it is going to be entered into evidence.

Entering chart notes: The treatment chart needs to reflect who provided the treatment; the doctor, the assistant, the hygienist, etc. It also needs to show who made the chart entry. Remember, the one who made the entry is technically the one who will verify its validity and veracity. Along with this, the record must be sufficiently detailed so that it accurately reflects the treatment that was rendered. Too many chart entries merely state “ortho adj” or something equally uninformative. No one is advocating that the person making the entry write the great American novel — the key phrase is that the entry must accurately reflect whatever procedure was performed or the discussion that was had. In addition, it is advised to keep abbreviations to a minimum, or in the alternative, to only use those that are universal in nature. One simple example is “L”. Does that mean lower or left? In context, it can be figured out, but no one will know what “SLML” means — shift lower midline to the left.

Altered or missing records: NEVER alter or re-write the patient’s chart. If you are still keeping paper charts, that means no white outs, no black outs, no erasures of any kind. If you make an error, draw a simple line through it so it can still be read, write the words “entry made in error” and then make the correct entry. Any necessary additions or addendums made after the original entry was made, whether using paper or digital charts, should be made in chronological order referencing the date that the addition or addendum refers back to. If it is discovered that you have altered the patient’s record in any way, it reduces your credibility to the jury to about zero. It is an excellent way to lose a lawsuit. Along these lines, if a patient’s chart just happens to disappear due to a convenient fire, flood, or other mishap, most states recognize this as an example of “Spoilation of Records,” and the court will give an instruction to the jury that they may consider that the records are missing because they may have “hurt” the defendant doctor in some way. Thus they are entitled to draw a negative inference from their being missing as by law practitioners are required to obtain, keep, and safeguard the patient’s record.

Non-compliant patients: Document ALL instances of non-compliance such as broken, missed or cancelled appointments, non-cooperation with treatment instructions, poor oral hygiene, not following recommended referrals, etc. All of this goes towards showing various degrees of contributory or comparative negligence on the part of the patient. Think of it this way — your records are there to help you win the case, but if you happen to lose, then hopefully all of this conspicuously noted patient non-compliance may result in the dismissal of the case or, the patient receiving a much smaller award than they would otherwise receive. In addition, make sure all conversations with the patient/parents are documented in sufficient detail and note all unusual questions or responses. Ideally, all instances of non-compliance should “standout” from regular entries, so if your software allows, type those entries in RED, bold, or CAPITALIZED typeface. Still using paper charts? Use a Bic 4-colored pen — black or blue for regular entries, red for non-compliance, and green for next visit.

Timing: Don’t wait until day’s end to write up the patient’s chart. Learn to do it at or near the time the treatment was rendered. If you wait several hours to make your entries, it is not hard to imagine confusing some of Jane’s treatment with that of Joan’s.

Objective versus subjective: Don’t place subjective comments or impressions in the body of the chart — only notate objective data. If you need to write something subjective, like “the patient presented for treatment in an inebriated state” or “appeared unreasonable and distraught,” create a separate page in the file for all subjective entries, keeping those entries in chronological order so they can be incorporated by reference if needed.

Long-term records handling: NEVER part with your original records. You own the records; the patient owns the information contained in the records. You must keep dental records for at least as long as your state’s Statue of Limitations requires. However, be aware that your state’s Dental Practice Act, Public Health Laws, and other administrative agency’s rules and regulations may have different temporal requirements for retention of medical records; and, often these time periods are much longer than the Statute of Limitations; particularly when minors are involved. You are the custodian of the records. If you die, your estate becomes the custodian. Make sure to discuss this matter with whomever will handle your legal affairs after your passing.

Privacy of records: Don’t leave the chart out or the computer on when the patient is alone with them. They are not made for pleasure reading. Yes, the patient/parent can always request a copy, which you must legally provide^9,10 even if they have an outstanding balance.

Access to records: Don’t interfere with a patient’s access to their records. If they complete the required privacy forms and request a copy for themselves or they want them transferred to another doctor, do it. Don’t drag it out or not comply for whatever reason. Whatever your reason is for not complying with a valid records request, it can’t be worth jeopardizing your license as doing so is both illegal and constitutes unprofessional conduct.

Referrals: Be sure to document all referrals made, and if you gave the patient a referral, be sure to follow up and document a) whether the patient cooperated with the referral and b) if they did, make sure you have both read the response from the referred to doctor and filed the response in the patient’s record. It’s very hard to defend doctors who are astute enough to recognize a referral was necessary, which is then followed up by not following up.

Keeping extensive records: Retain copies of ALL correspondence of any and every type that concerns the patient, and make sure that they are appropriately filed in the patient’s record. You don’t want to have to explain why x, y, or z is missing from the patient’s record. When records are missing, the jury does not view you in the best of light.

Re-scheduling: Go over all no-shows at the end of the day. Some patients require an immediate re-appointment, others can wait awhile, but only the doctor knows which is which. You must have some review mechanism in place to track patients who missed appointments and to be able to get them back into the office in a reasonable period of time. To not follow up on missed appointments in a timely manner can actually cause or worsen an injury. You want to be able to prove via written documentation that you made every effort to reschedule uncooperative or non-compliant patients.

Recall appointments: You also want to document missed recall appointments. Recall visits for patients who may not be developmentally, psychologically, or financially ready for treatment are in actuality treatment visits, and missing them can result in a missed opportunity for timely intervention; think ectopically erupting canines. Documenting these appointment failures goes a long way toward proving an affirmative defense that the patient was contributorily negligent.

Filling out forms: Sending out medical history forms in advance or having patients complete these forms on-line prior to their visit can be seen as a mistake waiting to happen. First, it presumes people can read; some can’t. Second, it presumes they understand what is being asked; some don’t. Third, very often, the forms themselves are responsible for limited or inaccurate responses as in many cases there is only a yes or no box that can be checked, when in reality, if the medical history was obtained in person, one might receive a response of “no, not really” which begs for further exploration or explanation. Learn to obtain them orally. If done properly, it takes a minimal amount of time and enhances the doctor-patient relationship.

Mentioning other doctors: Never tell a patient or write in the chart that a previous doctor did substandard work, overcharged the patient, was experimenting or using an experimental technique, was unethical, dishonest, didn’t know what he was doing, or, that he committed malpractice.

Commenting on products: Don’t attack a product, manufacturer, or vendor unless you can prove whatever your contention or position happens to be as you may be liable for damages to their commercial reputation.

Conclusion

All risk managers, attorneys, consultants, fellow practitioners, and expert witnesses see inadequate or poor quality records much too frequently. Examples are medical history forms not filled out, sections of a clinical exam form left blank, inadequate photographs, and most importantly, poor quality radiographs. If physician’s offices, imaging centers, and hospitals order a test or take an X-ray, and it doesn’t show what they need it to show or is of unreadable quality, they will redo a test, retake a film, or obtain whatever is necessary. We need to operate the same way. If the patient refuses, learn to say goodbye; you do not have to continue treating a patient who refuses to follow direction, instructions, or recommendations.¹¹

Good record taking and record keeping is a skill every doctor needs to develop and incorporate it into their daily practice. If an orthodontist truly wants to practice at the highest level, it won’t happen because he or she uses the newest widget or gizmo. It will be because the doctor wishes to both protect and serve his or her patient while at the same time protecting and serving his or her best interests.