OMS’s Records Retention Failure Affects Malpractice Case Outcome

Underlying Facts

Dr. G is an oral and maxillofacial surgeon with two offices, one in each of two neighboring states; he had been practicing in State A for many years and only opened the office in State B a little over a year prior to the events here. Having gone through the process of providing copies of records to patients in State A, he and his staff were fully familiar with recordkeeping requirements in that jurisdiction, but far less so for the newer location.

R, Dr. G’s patient, a 16-year-old female, who had been treated (2 prior consultations) exclusively in the office in State A, presented on referral with “off-and-on pain” associated with a partially impacted lower left third molar. R found it difficult to refrain from gagging when a periapical radiograph (in lieu of a panoramic film due to ongoing repairs on the machine) was taken of the area of tooth #17, so Dr. G was unable to visualize the entirety of the tooth. Nevertheless, he was convinced, based upon what he saw clinically, and based upon prior symptoms, that the tooth was in need of extraction. He suggested to R that she go to the office in State B, just about 25 miles away, to have the extraction performed because that office had CBCT capability, so that study could be done prior to the performance of the extraction. R and her mother agreed.

A week later, R presented to the new office in State B, driven there by her mother. R had taken a physician-prescribed oral sedative to calm her nerves, as she did before most dental visits, and that made her feel very drowsy. A CBCT was performed, providing a complete view of the tooth to be removed; according to Dr. G, he explained to R, who was “drifting off” by that point, and to her mother, the risks, benefits, and alternatives that he believed to be relevant, and he made a handwritten chart entry stating, “RBA explained to patient and mom.” The extraction went forward uneventfully, using local anesthesia only, with R seemingly unaware of what was taking place.

At a post-operative check visit, five days following the extraction, the patient complained of a profound paresthesia over the anatomic course of the left inferior alveolar nerve. Despite Dr. G’s timely referral to another oral surgeon whose practice focuses on nerve injuries and their potential repair, no repair was able to be attempted and the patient remained with a permanent paresthesia, unchanged from its initial post-treatment presentation.

Legal Action

No longer a minor, R contacted an attorney in State B who frequently manages medical and dental malpractice actions. In response to the attorney’s HIPAA-compliant request for Dr. G’s records, Dr. G responded that the records were no longer maintained because the required retention period for dental records had expired; however, the CBCT was still available in that system, so copies of that study were given to the attorney. The attorney asked an oral surgery expert to review the CBCT study, and that expert advised the attorney that, from a radiographic perspective, it was clear that the roots of tooth #17 were intimately involved with the inferior alveolar nerve, such that it was not unexpected that the nerve injury would have happened, even with the procedure performed ideally.

On behalf of R, the attorney filed suit against Dr. G, with the only claim being that Dr. G had performed the extraction without having obtained the informed consent of R’s mother (on R’s behalf). After Dr. G was provided counsel by his malpractice carrier, Dr. G’s deposition was taken. At the deposition, he was asked why he had no longer maintained the complete dental record, which he claimed included documentation of the informed consent discussion, and he responded that, for some time, he purged his records on a regular basis so as to conform to the requirements of State A, and he carried over the exact same process for his newer office in State B.

At trial, Dr. G testified that he verbally advised both R and her mother of the risks, benefits, and alternatives associated with the extraction of #17, and noted that in his chart, but neither R – who had been orally sedated at the time – nor her mother recalled any such conversation. Prior to the conclusion of trial, R’s attorney sought a jury charge known as “spoliation (destruction) of records.” The attorney explained to the judge that his request for records from Dr. G was within the time period that State B required they be maintained, due to the elongation of time when minors are involved (with minors generally also benefitting from a longer time within which to start a lawsuit). That records retention time period was one year longer than in State A. The judge agreed with the argument and gave that charge to the jury, even though no nefarious purpose for the records to be missing was ever suggested. Within the charge was language stating to the jury that its members may draw an inference that, if the records, which are claimed to include the informed consent discussion, had been produced at trial, they would have supported the position of R and her mother, that there would have been no documentation of the informed consent process having taken place, because it did not take place.

The jury concluded just that way, finding in favor of the patient-plaintiff and awarding her a sum of money to compensate her for the altered sensation she was experiencing and was expected to experience for her entire life.

Takeaways

It is by no means expected that oral surgeons should be experts in the law to the degree of attorneys, but it is expected that oral surgeons should be aware of some of the basic functional laws that have a direct impact upon their practices (oral surgeons can use their state’s Dental Board or other governing body as resources to obtain this information, if they do not have lawyers who advise them about business practices). The states vary significantly on how long oral surgeons and dentists are required to maintain their patient records, and whether there are extended periods of required retention when minors were the patients.

In this case, Dr. G was subject to the laws of State B, which had a longer maintenance period than State A, because he treated R in State B for the dental care at issue. Practicing in adjacent states is far from uncommon, and some patients in those practices, like R, are treated in both locations. When that is the case, it is prudent for oral surgeons to keep those records for the longer of the two time periods, as a precaution against a court deciding that they should have done so, perhaps even when the majority of treatment was performed in the state with the shorter time requirement. Being required to keep every component of a patient’s record means keeping even physically bulky items; while that might put a strain from a storage space standpoint, the requirement stands nevertheless. And the failure to adhere to the requirement might lead to, among other things, the result demonstrated in this case study.

Some oral surgeons are in a unique position regarding records retention. Various jurisdictions differentiate between physicians and dentists as to the amount of time they are required to maintain patient records. So, dual-degree oral surgeons, who are also licensed as both physicians and dentists, are wise, from a risk management perspective, to keep their patients’ records for the longer of those two time periods. Doing so will go far to ward off potential arguments against them of premature destruction of records, with all its potential ramifications.

Even though, as here, there was no negligence in the extraction procedure itself – or at least no claim of negligence supported by an expert – an injured patient might still levy a valid claim against an oral surgeon for failing to obtain that patient’s informed consent prior to the start of the procedure. In plain language, informed consent is a process by which an oral surgeon educates a patient about what they are about to get into so that the patient can make a risk-reward determination in advance of going forward. States differ on the specifics of what informed consent is, when it is required, and how it is to be documented, so that is another area about which oral surgeons need to be aware. With some exceptions, even a non-negligently performed procedure which causes injury (which would not be actionable under normal circumstances) can allow for a viable claim if the patient was not warned about the risk of that injury – presuming that the injury was foreseeable – and given the opportunity to refuse the treatment.

Note that this case presentation includes circumstances from several different closed cases, in order to demonstrate certain legal and risk management principles, and that identifying facts and personal characteristics were modified to protect identities. The content within is not the original work of MedPro Group but has been published with consent of the author. Nothing contained in this article should be construed as legal, medical, or dental advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your personal or business attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.