By Dan Schulte, J.D.
MDA Legal Counsel
From the March 2010 issue of the Journal
Question: I’m a general dentist providing orthodontic services as part of my practice. A patient has called my office seeking a second opinion regarding a teeth-straightening procedure recommended by an orthodontist. We requested her records from the orthodontist. The orthodontist’s office told us they would only send the records if the dentist requesting them was certified in orthodontics. Can they withhold the records on this basis?
Answer: No. Michigan’s Medical Records Access Act requires that dentists and other health care providers furnish patients with copies of their records upon request if the patient pays a copying fee that does not exceed:
- $1.10 for the first 20 pages;
- $.55 per page for pages 21 – 50;
- $.23 per page for pages 51 and over;
- also, an initial fee of $22.08 per request may be charged if another dentist or anyone else other than the patient requests the copy.
There is no law or ethical rule allowing the orthodontist to restrict the transfer of the patient’s records to only another certified orthodontist. Michigan’s Medical Records Access Act requires the orthodontist to provide a copy to a patient who is willing to pay the prescribed fee. The orthodontist (if not willing to provide you with the records directly) must provide the copies to this patient who, in turn, can deliver them to you.
If the orthodontist is an MDA member he or she should be made aware of and follow Ethical Rule 1.B.1. This Rule and the accompanying Advisory Opinion require MDA member dentists on the request of either “a patient or the patient’s new dentist” to furnish either gratuitously or for a nominal copying charge, copies of those dental records that are beneficial for the future treatment of that patient. The ethical requirement, unlike the legal requirement, requires the orthodontist to provide a copy of the record to you.
The “nominal” copying charge cannot exceed the fee limitation contained in Michigan’s Medical Records Access Act described above.
Question: What if I don’t agree with the recommendation made to the patient by the orthodontist? Should I direct my criticism to the orthodontist, to the patient, or both? If the criticism should be directed at the patient, what can I say?
Answer: There is no law specifically directing how to act in this situation. To comply with the standard of practice you must at all times accurately and fully inform the patient as to the results of your examination. You must also provide the patient with your recommendations as to the best course of treatment based on your professional judgment. This is the case even in situations like this, where the results of your exam and/or your recommendations are at odds with those of another dentist.
For MDA members, Ethical Rule 4.C. and Advisory Opinion 4.C.1. provide some guidance in this situation. This Ethical Rule states that patients should be informed of their present oral health status without disparaging comment about prior services. Your comments must be truthful, informed and justifiable. The Advisory Opinion specifically provides that a difference of opinion as to preferred treatment should not be communicated to the patient in any manner that would unjustly imply mistreatment. The Advisory Opinion suggests speaking with the other dentist involved first. This is certainly a good practice to ensure that there is not information with which you are unaware that may make a difference in your opinion.