October 2009, Volume 5, Issue 9
Published by AEGIS Communications
In the event of a malpractice lawsuit, good dental records are the bedrock of a sound defense. Altering records can lead to disaster in the courtroom.
For the practicing dentist, the worst day of their professional life could be the day that legal papers are delivered to the office notifying them that a malpractice lawsuit has been filed. This begins a crisis that will, in all probability, take years to reach its conclusion. The emotional scars, the time spent out of the office defending a lawsuit, and the physical impact on the dentist all leave their mark long after the lawsuit is resolved.
Dentists can protect themselves from being sued by practicing within the standard of care, or at least minimize the risks of being part of a malpractice lawsuit. However, practicing within the standard of care is oftentimes not enough and the chances of being sued during a professional career are significant, especially in our litigious society.
In an article that I authored for Inside Dentistry in the November/December 2006 issue, I addressed some of the reasons why dentists are sued for malpractice and I discussed proven methods that dentists can use to diffuse situations where lawsuits were pending. This article will address the serious problem of altered patient records, the ways that altered records are discovered, and the reasons why the discovery of altered patient records can undermine the best dental malpractice defense.
It is a well-known tenet in dental malpractice litigation that good dental records can be the most powerful tool in defending dentists in court,1 because complete and accurate clinical documentation is the foundation that a successful court defense is built upon. The credibility of the dentist and the adherence to accepted standards of dental care can be proven in court by good clinical documentation. Jurors believe that if it was written in the dental records then it was said and done in the dental operatory.2 Dentists who have been sued for malpractice will often find that when they review the records of the patient in question, the records are inadequate or incomplete for what was diagnosed, discussed with the patient, the treatment for which the patient gave consent, and for the actual treatment that took place. It is at this point in time that the dentist will add documentation to the record or fraudulently alter the patient record in an attempt to give credibility to proving adherence to acceptable standards of dental care and, therefore, bolstering their defense against malpractice. It is critical at this point in time for the dentist to leave the records unaltered. Whatever is in the records, whether adequate or inadequate, will be what the defense will use in court.
In malpractice litigation, there is a period of time when all parties in a lawsuit are entitled to review all pertinent information that will allow them to learn about all of the facts of the case. This period of time is known as discovery. All clinical records, notes, x-rays, models, and communication between the dentist, patient, and specialists are discoverable and must be made accessible to all of the parties. This is the time where altered records are often found by the patient’s attorney.
How Altered Records are Discovered
There can be a substantial period of time that can pass between the time an alleged malpractice event occurred and when a lawsuit is actually filed in court. Many states have a statute of limitations of 2 years, meaning a patient has up to 2 years from the time an alleged malpractice event took place or was discovered to file a lawsuit against a dentist. In dentistry, the discovery of a malpractice event can be much longer than 2 years. In the case of a minor, the time frame can extend out for many years until the child reaches the age of majority in that state. Because there is often a long lapse of time between the actual treatment of the patient and the litigation of the lawsuit, much of what took place at the time of the alleged malpractice occurrence will be forgotten by the dentist, the patient, and the staff. Unbeknownst to the dentist, the original record could have been copied and sent to the patient, another treating dentist, or a specialist treating the patient. Once a lawsuit is filed and served on the dentist, there may be an overwhelming desire to add to the record or to alter it in a way to make it more credible for the dentist. Once the original records are altered or more information is added, they are then forwarded to lawyer’s offices or insurance carriers. This results in two different sets of clinical records showing up in the patient’s lawyer’s office, or worse, in the courtroom.
There are times during the discovery phase of a malpractice lawsuit when the clinical records will be questioned as to their authenticity and credibility. Experienced personal injury attorneys will ask the court to allow for forensic examination of both written and computer records. These costly forensic examinations are admissible in court. Using highly sophisticated and technical testing methods, these examinations can and will expose written and computer records if they have been found to be altered after the fact. A positive report on an altered record can have a devastating effect in the attack on the dentist’s credibility.
Effects of Discovering an Altered Record
It is the opinion of many successful defense attorneys that clinical records proven to be altered after the filing of a lawsuit render a malpractice case extremely difficult or impossible to successfully defend in court. The credibility of the dentist in front of the jury is now the centerpiece of the plaintiff’s case. Expert witnesses are extremely reluctant to testify in court using altered records as evidence. Defense attorneys always have a much greater chance of successfully defending a dentist against malpractice with inadequate or incomplete records than with altered records.
It is the responsibility of all dentists to learn what the standard of care for clinical documentation is for the state in which they practice. Dentists need to continually evaluate their record-keeping practices to ensure that acceptable standards are met and maintained. It is critically important to have good records to maintain good patient care. Records that meet accepted standards of dental care will negate any need or desire to alter records at some later time. Those records that meet accepted standards will be your best defense against any malpractice lawsuit.
Do not let a malpractice lawsuit force you to keep better records. Start the process with your next patient. You will practice better dentistry and you will sleep better at night.
1. Dental Risk Management Advisor. October 2004;8(2).
2. Speidel TM, Jerrold L. Litigation, legislation, and ethics. Record keeping to avoid or defend lawsuits: a defense attorney’s perspective. Am J Orthod Dentofacial Orthop. 2004;125(6):754-756.
About the Author
Mitchell J. Gardiner, DMD
Fair Haven, New Jersey