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Legal Services

by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the September 2002 issue of the Journal

Member questions are piling up. Many require only short answers. This month's column sets forth answers to several questions you've asked.

Question: I have been contacted by a husband who is going through a rancorous divorce with my patient. He insists that I submit a detailed treatment plan on his wife, as well as the cost for each procedure. He is her guarantor and thus believes he is entitled to this information. What should I do?

Answer: This information is confidential between you and your patient. Without a written authorization from your patient or a court order you should not release this information. It is protected by the dentist/patient privilege.

Question: I have a long-term patient of record who has received quite a bit of radiation for cancer over the past year. She told me that her physician advised that she not receive any additional X-rays over the next year. I believe dental radiographs are necessary, given her overall health. What should I do?

Answer: With her permission, you should discuss the case with her physician. If the physician approves the dental radiographs, you should note that information in the patient's chart and proceed with the radiographs with the patient's consent. If the patient does not authorize your discussion with her physician, or the physician continues to advise against dental radiographs, you must then determine the appropriate standard of practice under the circumstances. If you cannot properly treat the patient without dental radiographs, it may be necessary to dismiss the patient from your practice. Alternatively, you should obtain informed consent from your patient. This means you must advise the patient of the ramifications of treatment without radiographs and, if it is dentally appropriate, treat the patient without radiographs. The specific informed consent should be recorded on the patient's chart and, if the circumstances warrant, the patient should sign a document consenting to treatment without dental radiographs. The document should include the risks and potential problems that could result.

Question: I have redone all my history forms and am in the process of having the patients complete new forms. Must I retain all of the old forms? Are they considered treatment or nontreatment records?

Answer: Although there is no statutory definition of "treatment record," it is conceivable that some history forms could be considered part of the treatment record. My advice is to consider history forms as treatment records and retain the same for a period of not less than 10 years after the performance of the last service upon the patient, which is the statutory requirement.

Question: I am a retired dentist who provides dental services on a volunteer basis at a local free clinic. I am aware that recent legislation grants limited immunity in these circumstances. Could you explain the new law? Must I still carry professional liability insurance?

Answer: Recent legislation amended the Public Health Code to state that a licensee who provides non-emergency health care to a patient without receiving compensation is not liable in a civil action for damages for acts or omissions in providing the nonemergency health care, unless the acts or omissions were the result of gross negligence or willful and wanton misconduct, or were intended to injure the patient. For the immunity to apply, the nonemergency health care must be provided in or as a result of a referral from: (1) a health facility whose sole purpose is the delivery of free health care; or (2) an entity that is not a health facility and that provides nonemergency health care to uninsured or underinsured individuals through the voluntary, uncompensated services of licensees. In addition, written disclosure forms describing the limitation of liability and stating that the service is free must be provided to the patient, and the patient must sign an acknowledgment of receipt of the disclosure. The immunity provided in this statute does not apply to surgery that requires more than a local anesthetic. The statute applies only to causes of action arising on or after Jan. 1, 2002.

A primary purpose of the statute is to authorize health care professionals to perform volunteer, nonemergency services without requiring the doctor to purchase professional liability insurance. The law is technical and a more careful analysis would be required to determine whether the facts relative to the clinic and your practice clearly fit the statute. It would be irresponsible for me to advise in this column that professional liability insurance was unnecessary without a more careful assessment of the facts.

Question: I understand that I can charge a reasonable copying charge for duplicating dental records. Can I require the patient or person requesting the copies to make a charitable contribution in lieu of a fee for duplicating the records?

Answer: If the patient objects to a charitable contribution, you should not withhold a copy of the records. The patient has a legal right to a copy of the records on the condition that a reasonable copying charge is paid, but there is no condition that a patient make a charitable contribution.

You can request a charitable contribution in lieu of a copying charge, but if the patient refuses you should not withhold the records on that basis. A better alternative might be for you to make the charitable contribution from all of your copying charges at the end of the year, so advise your patients, and get the tax deduction.

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