From Volume 41, Issue 4, May 2014 | Pages 338-340
Clinical and ethical risk management requires not only the correct treatment being provided, and appropriate consent obtained, but also good records of that treatment. This third article of the series describes the characteristics of good records and their role in helping to prevent the progression of complaints, General Dental Council (GDC) cases and legal claims.
It is often assumed that a good technical standard of dentistry, as well as appropriate consent and communication, is all that is required to prevent problems occurring. However, the third strand of risk management, good record-keeping, is also fundamental. Unfortunately, records are not always seen as a particularly attractive subject. The volume of clinical treatment being provided, as well as sheer patient numbers, can produce pressures by reducing the amount of time available to complete the clinical notes.
However, the GDC gives clear guidance1 confirming the obligation to create appropriate records for all patients, stating:
‘You must make and keep complete and accurate patient records, including an up-to-date medical history, each time that you treat patients.’
In addition, whilst good records do not in themselves provide any extra income or productivity, and will invariably take up some additional time, they are invaluable in preventing the progression of many complaints and claims. Legal claims for damages, in particular, are much more likely to be successfully defended if the records are good.
Good records are therefore not only an ethical obligation, but can also be of great help in managing risk. Conversely, they are a considerable disadvantage if they are poor. The quality of the clinical treatment and the thoroughness of the consent process may be excellent, but if the records are inadequate then problems can still result. Why should this be the case?
Despite good treatment being carried out, and valid consent obtained, patients may still complain over what was said or agreed. Difficulties will then inevitably occur if the clinical records are inadequate.
This may not necessarily seem to be a problem, particularly if there was a nurse or other colleague present who witnessed what was said and can confirm events. However, complaints and claims may be made weeks, or even years, after the alleged incident. Who will then be believed?
Unfortunately, it is more likely to be the patient, as it would be argued that, if the evidence states that no one has a clear recollection then the patient's view might well be believed. Patients attend the dentist, in most cases, only a few times per year but dentists and other treating staff would see many patients during the same period of time. It could then be (successfully) argued that the patient's memory was more likely to be reliable than that of the dentist or dental team member, even if that was untrue.
The information in good records will outlive the longest memory and provide clear confirmation of not only the treatment itself, but also the discussions and agreements related to that treatment.
If treatment has been clearly unsuccessful, for whatever reason, then issues of blame or liability are rarely in doubt. If however there is a dispute over what was said before, during or after treatment, then the contents of the records are crucial. Records are really the only means by which an external body, or person, can judge the validity, or not, of a complaint, claim or GDC case. After all, they were not there.
Whilst good records will provide a good defence; poor records, or no records at all, can give very little help. If records are genuine and contemporaneous then what has been said by the dentist and other team members is not only considered to have happened, but the documentation is accepted as proving this. Unfortunately, if the records are inadequate, or even non-existent, then it is very difficult to confirm what was said. This does not mean that the patient's recollection will automatically prevail, but it does make facts much more difficult to establish.
It is also important to remember that a complaint or claim without any foundation whatsoever is still difficult for a patient to sustain, even if the records are not perfect, and especially if it has no relation to a clinician's normal practice.
Furthermore, in respect of claims, or attempted claims, for compensation it is reassuring to remember that solicitors do not just take on cases where patients are acting for malicious or mischievous reasons alone. Their role is to obtain damages for the patient, together with costs and fees for themselves, and they will not act if there is no reasonable probability of the claim succeeding. Where the records confirm that both the treatment, and the discussions around the treatment, took place and that the actions of the clinician were not negligent, then the case can go no further, no matter how determined the patient may be.
Good records are therefore always desirable. So how can they be made as effective as possible?
It is dangerous to assume that treatment records are purely for the clinician alone. Whilst the records are obviously needed to provide good treatment, they are also, in almost all situations, accessible to the patient and any other person or organization that the patient authorizes to receive them. Under Data Protection legislation2 patients, or their parents/representatives, can receive copy records (but not originals) if a written request is made.
This accessibility makes it prudent therefore to look upon patient records, and their contents, as ‘public’ documents. The entries must obviously be a true and accurate reflection of events, but it is also important to remember that what is written can be read by anyone that the patient authorizes, at any time in the future.
So what makes a good record? Research, invariably focusing on the audit of record-keeping, from undergraduates3 to experienced dentists,4 can show what the shortcomings may be, but what are the essentials of good record-keeping?
If the right information and detail is entered, then the record can be understood by anybody reading it. Good ‘input’ of material is vital to produce a good ‘output’ of understanding. The Faculty of General Dental Practice produces guidelines on clinical examination and record-keeping.5
Ten essential requirements for clinical records:
The record also has equal validity whether it is on paper or computerized. However, both formats are subject to the same conditions of clarity, legibility and security, as well as needing to be contemporaneous.
Acronyms are also reasonable as long as they have general acceptability and can be easily interpreted by patients and/or their representatives.
If the appropriate material is entered correctly and comprehensively then hopefully anyone looking at the record should be able to answer the following questions:
Whilst recording the treatment that was carried out is obviously essential, it can sometimes be forgotten that a record of what was not, or could not, be provided is important as well. For example, a patient could complain that his/her dental health had been neglected, causing problems. The record could indeed show that very little treatment was actually carried out. However, the patient may also have failed appointments, cancelled appointments or attended but then refused treatment. A record of what could not be done would then be of considerable importance in refuting a complaint of supervised neglect, where the treatment was clearly available and offered, but could not be provided.
In addition, there must be a record of any complaint made, no matter how upsetting this may be. However, whilst a note that a complaint has been made, and the complaint process initiated is recorded, any further details of the complaint and its progression and resolution should be in a separate complaint file. Clinical records need only record the treatment itself or treatment-related detail.
The following case illustrates the importance of good records in the management of risk and prevention of legal claims.
A patient had attended the same practice for nearly 15 years but his attendance had been spasmodic, usually for the relief of pain, despite being strongly encouraged to come back for appropriate treatment. He was particularly informed that he needed some intensive periodontal treatment with the hygienist.
Despite this, he either failed to attend for those hygienist appointments or cancelled them at short notice. He also refused treatment on a number of occasions. This was thoroughly documented in the records.
On his most recent visit, he complained that a number of his lower anterior teeth were loose. Examination and radiographs showed that the bone support was now minimal and all that could be offered was extraction.
The patient complained that this was unacceptable to him and that his problems must be due to negligent treatment. He was politely told that he had been fully informed about the need for treatment but that his attendance had been poor and the care needed could not be provided.
This was denied by the patient who stated that as he had been attending the practice for the last 15 years; he should have been given the correct advice and treatment and that, in his view, this had not been the case.
The patient instructed solicitors who wrote to both the treating dentist and hygienist alleging negligence, in general terms, but also requesting a copy of the patient's records. They further stated that they were acting under a conditional fee arrangement, in effect on a ‘no win no fee’ basis. The records were duly forwarded. The dentist's and hygienist's indemnity organization was also informed and they opened correspondence with the patient's solicitors, on the clinician's behalf.
Nothing happened for a period of 2 months until a short letter was received from the patient's solicitors informing the dentist's and hygienist's indemnity organization that they (the patient's solicitors) were no longer instructed. The claim was therefore abandoned.
This case clearly demonstrates the importance of good records. The clinical notes for this patient included not only the examinations, including pocket charts, as well as a note of the discussions with the patient. However, there were also clear records of the dates and times when he failed to attend, cancelled at short notice or attended, but declined periodontal treatment.
The records therefore confirmed no negligence on the part of the treating clinicians as the patient had declined the treatment that was needed and had been offered to him. In this situation the record of what could not be done was just as important as recording what actually took place. The patient's solicitors would not, and could not, continue any further with the case as there was no possibility of the claim being successful, no matter how determined the patient was. The clinical notes really did ‘record’ the dentist and hygienist out of trouble and lifted the burden of worry and concern from their shoulders.
There may, however, still be some concerns about what, or what not to record.
As mentioned earlier, patient records and their contents should be considered as material that might become ‘public’. The patient can obtain copies and show them to anyone that they wish. It is important therefore to avoid recording views and opinions that are subjective, or not necessarily supported by fact. For example, a patient may have a rude and unpleasant manner, constantly criticizing or questioning treatment, but recording in the treatment notes: ’this is a very rude patient’ could be open to challenge. After all, one person's perception of rudeness may be different from another's. The patient could argue that he/she was simply behaving appropriately in asking for detailed information about dental care given.
Conversely, a failure to record, for example, offensive language could be a clear disadvantage. Stating that a patient ‘used inappropriate language to dentist and staff’ may mean nothing if the actual words are not quoted. The patient could then argue that he/she didn't say anything offensive. If written down, then the actual words may look uncomfortable, but if that is what was said, and witnessed by others, then the record is absolute proof. The record provides the objective fact rather than the subjective opinion and the words cannot then be subsequently denied by the patient.
Subjective views really have no place on a record but a factual record of the words used, where it is needed and appropriate, does.
Records should always be completed at the time, or as soon as is possible after treatment.
However, it can be one of the frustrations of a patient complaint, or attempted claim, that those particular records are poor. With hindsight, some things may not have been recorded that did indeed take place. There can therefore be a temptation to remedy this deficiency. This temptation must be resisted. Any attempt to change a record, to make it look as if the entry was contemporaneous, is fraught with professional and legal peril. Fraudulent alteration of records could be construed as perverting the course of justice and the GDC takes a very serious view of such action.
In almost all cases, what is in the records is the record. However, it is possible to contemporaneously alter a record, although really only an addition is considered credible. This alteration must be made as soon as is possible after treatment and signed and dated (that day). It is however unwise to amend a record after a complaint or potential claim has been made, as this will invariably invoke suspicion.
Goods are a vital part of clinical risk management. No matter how good the treatment, and the consent and communication, problems can still arise if the records are inadequate. Time spent in producing comprehensive treatment records is time well spent and, in many situations, we can indeed have recorded our way out of trouble.
