By Dan Schulte, J.D.
MDA Legal Counsel
From the January 2013 issue of the Journal
Question: A year ago I bought a dental practice. The selling dentist has since died. I had a large volume of his old patient records transferred to me. It is become very difficult to store all of these records in my office. Enough time has gone by since the sale that I know I will never need many of these records, and some of the patients had not been seen by the selling dentist in years. Also, some current patients did not transition to me, and I assume they have found another dentist.
I am converting to electronic records and I would like to start disposing of many of these unneeded records. How do I go about doing this legally? Do I have to contact patients first? Can I store the records offsite? How do I go about destroying records?
Answer: Your question raises a number of issues that I will address below one by one.
How long do dental records have to be maintained? Michigan law requires that dental records be kept for 10 years from the last date of treatment to which the record pertains. In a sale transaction typically the selling dentist assigns custody of all records to the purchasing dentist (this would depend on the actual language contained in the sale documents). The purchasing dentist then becomes obligated to maintain all the records assigned for the remainder of the 10-year period. The fact that the dentist having custody of the records is deceased also does not matter. If the records are less than 10 years old when the dentist dies the obligation to keep them for 10 years survives, and whoever has custody of the records succeeds to that obligation.
Do I have to maintain records of patients that I have not seen and with whom I have no dentist-patient relationship? The fact that you do not have a current dentist/patient relationship is irrelevant. If you have custody of a patient’s record that is less than 10 years old you may not destroy it.
Can I contact patients and seek permission to destroy their records? If a dental record is less than 10 years old, the only way you may legally destroy the record is to first obtain the written consent to do so from the patient. You should notify the patient that you intend to destroy his dental record and give the patient the option of: (a) taking possession of his dental record; (b) authorizing you to destroy his dental record; or (c) having his dental record transferred to the dentist he is currently seeing. If you do not receive permission in writing to destroy the patient’s record you may not legally destroy the dental record until it is more than 10 years old.
Can I move records to offsite storage facility? You can if you have a written agreement with the storage facility that puts the storage facility on notice that dental records subject to restrictions contained in Michigan law are being stored at the facility. The storage facility should be required in the agreement to comply with Michigan law (including, under no circumstances, destroying the dental records less than 10 years old, maintaining confidentiality, etc.).
Once I identify records that are more than 10 years old can I just throw them in the trash? That would not be the best practice. Michigan law requires that destruction be accomplished only by a method that insures that the continued confidentiality of the record. The statute includes shredding and incineration as acceptable methods. If you are not going to personally shred the records you should hire a mobile shredding contractor to shred the records for you. You should not place the records in the trash for normal pick up and disposal.