The dentist owns the physical record of the patient and is the legal guardian of the chart and its complete contents, including radiographs.
While patients do not have the right to possess their original record, they do have the right to see, review, and inspect their record, and to request and obtain a copy of it. Additional guidance is available in Section 1.B. of the ADA Principles of Ethics and Code of Professional Conduct.
You may want to consider waiving the cost of duplicating records if the patient’s request for the information is in response to an untoward incident. That consideration may generate good will and open the lines of communication so that the two of you can resolve the situation without involving other parties, such as attorneys or the state dental board.
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) permits covered dental practices to charge a reasonable, cost-based fee for copying records. The fee must be limited to the cost of:
- labor for copying the requested information (whether in paper or electronic form)
- supplies for creating the paper copy or electronic media if the patient requests an electronic copy on portable media
- postage if the patient requested that the copy be mailed
HIPAA regulations, and possibly even laws in your state, require you to provide patients with copies of their records even if the patient’s financial account is unpaid or past due. This is consistent with Advisory Opinion 1.B.1. of the ADA Principles of Ethics and Code of Professional Conduct.
Dentists working in practices under an office-sharing arrangement in which the dentist is either an employee or an independent contractor should ensure that their original employment contract clearly specifies who owns the dental records and when a dentist may have access to them. Employee dentists should review their employment agreements to ensure that there is language in that document to grant access to patients’ original records in the event that they are needed for any judicial actions.
Dentists looking to sell their practices should make sure that the contract includes language that requires the purchaser of the practice to retain existing patient records for at least 10 years; records for patients should be maintained for at least five years after the minor reaches the age of majority which, while it varies by state, is often considered to be the age of 18.
In a multi-practitioner practice of any nature, determining the party responsible for maintaining the original patient record of any patient treated at the practice facility may depend on the legal structure of the practice, such as the type of professional corporation (PC). Unless an applicable agreement specifies differently, a professional corporation would likely be considered the owner of a paper or electronic dental record, whether or not the owner was involved in the patient's treatment.
- ADA Principles of Ethics and Code of Professional Conduct, Section 1.B. and Advisory Opinion 1.B.1