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Legal Services

by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the November/December 1995 issue of the Journal

Question: Please clarify how long we must keep records on a minor if at age 18 he or she opts to go to an adult dentist.

Answer: The Public Health Code mandates that dentists retain records of all dental treatment performed upon a patient for a period of not less than 10 years after the performance of the last service. Therefore, all dental treatment records must be maintained for a minimum of 10 years, whether or not the patient the patient is an adult or minor. For non-treatment records, there is no current legal requirement for retention of records.

To determine what is most appropriate, an analysis of the applicable statute of limitations with respect to minors is critical. For causes of action accruing on or after April 1, 1994, a person 8 years of age or less must commence a malpractice action on or before that person's 10th birthday. Exceptions to this rule do not apply to dental treatment. Based upon the statutory requirement that treatment records be retained for at least 10 years, and the existing malpractice statute of limitations for minors, all dental records for minors should be retained for at least 10 years.

For causes of action prior to April 1, 1994, but after October 1, 1986, the statute of limitations for minors required that a suit be commenced by the minor's 15th birthday. For causes of action accruing prior to October 1, 1986, the malpractice statute of limitations for minors required that the minor commence a lawsuit on or before the 19th birthday. In addition, incompetency tolls the statute of limitations for all persons. Because of these uncertainties, a more conservative approach would dictate that dental records of minors be retained indefinitely.

After a period of 10 years, the dentist could cause the records to be deposited with a central storage facility or perhaps reduced to tapes or discs.

Question: I am a general practitioner who does a great deal of cosmetic dentistry. I would like to display some photographs documenting the results in my office waiting area. Should I have selected patients sign a release enabling me to display their photographs? If yes, what might a sample release contain?

Answer: The unauthorized use of a photograph of a patient for advertising or other commercial use is an invasion of the patient's right of privacy and right to control the commercial use of his or her likeness. Any patient whose photograph will be displayed must first execute a release allowing that display. A sample release appears on this page.

The patient must be 18 years or older for the release to be valid. Photographs of minors should be displayed only upon the receipt of a similar release executed by the patient's parents or legal guardian.

Sample Photo Release

In exchange for good and valuable consideration, the receipt and adequacy of which is acknowledged, the undersigned, together with his/her heirs and assigns, grants to (insert name of dental practice and name of individual dentist) ("dentist") the right and license to display photographs of the undersigned for advertising and/or similar commercial purposes within the dental offices of the dentist. The undersigned understands and agrees that such photographs will be displayed to, and be viewed by, the patients, prospective patients, dental and office staff and other persons who may enter the office of dentist.

Dentist: _______________________________________

Dated: _________________________________________

Patient: _______________________________________

Dated: _________________________________________

Posted in: Treatment Issues

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