Dental Records in a Digital Age

Brad Wright - Barrister updated their status.

1 week ago

𝗖𝗹𝗮𝘂𝘀𝗲𝘀 𝗶𝗻 𝗱𝗲𝗲𝗱𝘀 𝗹𝗶𝗺𝗶𝘁𝗶𝗻𝗴 𝗣𝗮𝘁𝗶𝗲𝗻𝘁 𝗖𝗼𝗺𝗽𝗹𝗮𝗶𝗻𝘁𝘀 𝗻𝗼𝘄 𝗜𝗹𝗹𝗲𝗴𝗮𝗹As has been the case in NSW for some time and as been foreshadowed by the writer previously, presenting Deeds of Release and Settlement that purport to prevent a patient making a complaint to the regulator are illegal as of 1 December.𝘗𝘦𝘰𝘱𝘭𝘦 𝘸𝘩𝘰 𝘮𝘢𝘬𝘦 𝘢 𝘤𝘰𝘮𝘱𝘭𝘢𝘪𝘯𝘵 𝘢𝘨𝘢𝘪𝘯𝘴𝘵 𝘢 𝘩𝘦𝘢𝘭𝘵𝘩 𝘱𝘳𝘢𝘤𝘵𝘪𝘵𝘪𝘰𝘯𝘦𝘳 𝘸𝘪𝘭𝘭 𝘣𝘦 𝘱𝘳𝘰𝘵𝘦𝘤𝘵𝘦𝘥 𝘧𝘳𝘰𝘮 𝘳𝘦𝘱𝘳𝘪𝘴𝘢𝘭𝘴 𝘰𝘳 𝘳𝘦𝘵𝘢𝘭𝘪𝘢𝘵𝘪𝘰𝘯 𝘶𝘯𝘥𝘦𝘳 𝘪𝘯𝘤𝘳𝘦𝘢𝘴𝘦𝘴 𝘵𝘰 𝘤𝘰𝘯𝘴𝘶𝘮𝘦𝘳 𝘱𝘳𝘰𝘵𝘦𝘤𝘵𝘪𝘰𝘯𝘴 𝘵𝘩𝘢𝘵 𝘤𝘢𝘮𝘦 𝘪𝘯𝘵𝘰 𝘦𝘧𝘧𝘦𝘤𝘵 𝘰𝘯 1 𝘋𝘦𝘤𝘦𝘮𝘣𝘦𝘳 2025.𝘗𝘦𝘰𝘱𝘭𝘦 𝘸𝘩𝘰 𝘮𝘢𝘬𝘦 𝘢 𝘤𝘰𝘮𝘱𝘭𝘢𝘪𝘯𝘵 𝘪𝘯 𝘨𝘰𝘰𝘥 𝘧𝘢𝘪𝘵𝘩 𝘢𝘳𝘦 𝘢𝘭𝘳𝘦𝘢𝘥𝘺 𝘱𝘳𝘰𝘵𝘦𝘤𝘵𝘦𝘥 𝘧𝘳𝘰𝘮 𝘭𝘪𝘢𝘣𝘪𝘭𝘪𝘵𝘺 𝘧𝘰𝘳 𝘪𝘯𝘧𝘰𝘳𝘮𝘢𝘵𝘪𝘰𝘯 𝘵𝘩𝘦𝘺 𝘱𝘳𝘰𝘷𝘪𝘥𝘦 𝘵𝘰 𝘈𝘩𝘱𝘳𝘢 𝘢𝘯𝘥 𝘵𝘩𝘦 𝘕𝘢𝘵𝘪𝘰𝘯𝘢𝘭 𝘉𝘰𝘢𝘳𝘥𝘴. 𝘛𝘩𝘦 𝘤𝘩𝘢𝘯𝘨𝘦𝘴 𝘸𝘪𝘭𝘭 𝘦𝘹𝘵𝘦𝘯𝘥 𝘵𝘩𝘪𝘴 𝘱𝘳𝘰𝘵𝘦𝘤𝘵𝘪𝘰𝘯, 𝘮𝘢𝘬𝘪𝘯𝘨 𝘪𝘵 𝘢𝘯 𝘰𝘧𝘧𝘦𝘯𝘤𝘦 𝘧𝘰𝘳 𝘴𝘰𝘮𝘦𝘰𝘯𝘦 𝘵𝘰 𝘵𝘩𝘳𝘦𝘢𝘵𝘦𝘯, 𝘪𝘯𝘵𝘪𝘮𝘪𝘥𝘢𝘵𝘦 𝘰𝘳 𝘰𝘵𝘩𝘦𝘳𝘸𝘪𝘴𝘦 𝘳𝘦𝘵𝘢𝘭𝘪𝘢𝘵𝘦 𝘢𝘨𝘢𝘪𝘯𝘴𝘵 𝘢 𝘯𝘰𝘵𝘪𝘧𝘪𝘦𝘳 𝘧𝘰𝘳 𝘮𝘢𝘬𝘪𝘯𝘨 𝘢 𝘤𝘰𝘮𝘱𝘭𝘢𝘪𝘯𝘵.𝘛𝘩𝘦 𝘮𝘢𝘹𝘪𝘮𝘶𝘮 𝘱𝘦𝘯𝘢𝘭𝘵𝘺 𝘸𝘪𝘭𝘭 𝘣𝘦 $60,000 𝘧𝘰𝘳 𝘢𝘯 𝘪𝘯𝘥𝘪𝘷𝘪𝘥𝘶𝘢𝘭 𝘰𝘳 $120,000 𝘧𝘰𝘳 𝘢 𝘣𝘰𝘥𝘺 𝘤𝘰𝘳𝘱𝘰𝘳𝘢𝘵𝘦.𝘐𝘵 𝘸𝘪𝘭𝘭 𝘢𝘭𝘴𝘰 𝘣𝘦 𝘪𝘭𝘭𝘦𝘨𝘢𝘭 𝘵𝘰 𝘦𝘯𝘵𝘦𝘳 𝘪𝘯𝘵𝘰 𝘢 𝘯𝘰𝘯-𝘥𝘪𝘴𝘤𝘭𝘰𝘴𝘶𝘳𝘦 𝘢𝘨𝘳𝘦𝘦𝘮𝘦𝘯𝘵 (𝘕𝘋𝘈) 𝘸𝘪𝘵𝘩 𝘢 𝘱𝘢𝘵𝘪𝘦𝘯𝘵, 𝘶𝘯𝘭𝘦𝘴𝘴 𝘪𝘵 𝘤𝘭𝘦𝘢𝘳𝘭𝘺 𝘴𝘵𝘢𝘵𝘦𝘴 𝘪𝘯 𝘸𝘳𝘪𝘵𝘪𝘯𝘨 𝘵𝘩𝘢𝘵 𝘪𝘵 𝘥𝘰𝘦𝘴 𝘯𝘰𝘵 𝘭𝘪𝘮𝘪𝘵 𝘢 𝘱𝘦𝘳𝘴𝘰𝘯 𝘧𝘳𝘰𝘮 𝘮𝘢𝘬𝘪𝘯𝘨 𝘢 𝘯𝘰𝘵𝘪𝘧𝘪𝘤𝘢𝘵𝘪𝘰𝘯 𝘰𝘳 𝘱𝘳𝘰𝘷𝘪𝘥𝘪𝘯𝘨 𝘢𝘴𝘴𝘪𝘴𝘵𝘢𝘯𝘤𝘦 𝘵𝘰 𝘳𝘦𝘨𝘶𝘭𝘢𝘵𝘰𝘳𝘴. 𝘈𝘯𝘺 𝘕𝘋𝘈𝘴 𝘵𝘩𝘢𝘵 𝘥𝘰 𝘴𝘦𝘦𝘬 𝘵𝘰 𝘭𝘪𝘮𝘪𝘵 𝘢 𝘱𝘦𝘳𝘴𝘰𝘯’𝘴 𝘢𝘣𝘪𝘭𝘪𝘵𝘺 𝘵𝘰 𝘮𝘢𝘬𝘦 𝘢 𝘤𝘰𝘮𝘱𝘭𝘢𝘪𝘯𝘵 𝘸𝘪𝘭𝘭 𝘣𝘦 𝘪𝘯𝘷𝘢𝘭𝘪𝘥.In plain language, although a deed of release may be presented to set out the terms of the settlement and even limiting civil liability, to the extent that there was any doubt, any attempt to prevent a patient complaint is not only arguably unenforceable (as against public policy) as has been the case for many years - it is now illegal.Further although it has not been stated, this will clearly also lead to allegations of unprofessional conduct.If a practitioner wants to settle a matter with a patient use an indemnifier approved deed of release (not something you get from ChatGPT for example)𝙏𝙝𝙞𝙨 𝙖𝙧𝙩𝙞𝙘𝙡𝙚 𝙙𝙤𝙚𝙨 𝙣𝙤𝙩 𝙘𝙤𝙢𝙥𝙧𝙞𝙨𝙚 𝙡𝙚𝙜𝙖𝙡 𝙖𝙙𝙫𝙞𝙘𝙚. 𝙀𝙖𝙘𝙝 𝙥𝙧𝙖𝙘𝙩𝙞𝙩𝙞𝙤𝙣𝙚𝙧 𝙨𝙝𝙤𝙪𝙡𝙙 𝙨𝙚𝙚𝙠 𝙞𝙣𝙙𝙞𝙫𝙞𝙙𝙪𝙖𝙡𝙞𝙨𝙚𝙙 𝙖𝙙𝙫𝙞𝙘𝙚 𝙗𝙖𝙨𝙚𝙙 𝙤𝙣 𝙩𝙝𝙚𝙞𝙧 𝙘𝙞𝙧𝙘𝙪𝙢𝙨𝙩𝙖𝙣𝙘𝙚𝙨.Liability limited by a Scheme approved under Professional Standards Legislation. ... See MoreSee Less

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Brad Wright - Barrister

3 weeks ago

𝗔 𝗪𝗼𝗿𝗸𝗮𝗯𝗹𝗲 𝗦𝗼𝗹𝘂𝘁𝗶𝗼𝗻 𝗳𝗼𝗿 𝗽𝗼𝗼𝗿 𝗱𝗲𝗻𝘁𝗮𝗹 𝗿𝗲𝗰𝗼𝗿𝗱𝘀?In a recent article, the issue of Ai and dental notes transcription was addressed.(O’Kane R, Stonehouse-Smith D, Ota LCU, et al. Transcription Accuracy of Automatic Speech Recognition for Orthodontic Clinical Records. Journal of Dental Research. 2025;0(0). doi:10.1177/00220345251382452)In essence the article states perhaps unsurprisingly…“This investigation revealed significant performance variability among tested ASR systems, with all capable of introducing clinically significant mistranscriptions. Clinicians using these systems should be cautious about plausible subtle substitutions or omissions of domain-specific terminology. The current status of ASR necessitates vigilance to guard against automation bias in the clinical environment, improvement in domain-specific accuracy, and potential uncertainty-aware features to ensure safe and reliable integration into clinical practice.”Clearly time at the end of the clinical day or session day could be set aside for a practitioner review of each patient’s AI records and then they should be finalised on that day.In Australia, it accepted that one of the best indicators for clinical record standards is whether a patient could use those records for treatment by another practitioner.No matter how good the transcription, unless the records contain relevant information then the records may still be inadequate.Practitioners might reference a check list and headings for all patent records while they are treating the patient to ensure all aspects of this requirement are captured whilst using AI transcription.𝙏𝙝𝙞𝙨 𝙖𝙧𝙩𝙞𝙘𝙡𝙚 𝙙𝙤𝙚𝙨 𝙣𝙤𝙩 𝙘𝙤𝙢𝙥𝙧𝙞𝙨𝙚 𝙡𝙚𝙜𝙖𝙡 𝙖𝙙𝙫𝙞𝙘𝙚. 𝙀𝙖𝙘𝙝 𝙥𝙧𝙖𝙘𝙩𝙞𝙩𝙞𝙤𝙣𝙚𝙧 𝙨𝙝𝙤𝙪𝙡𝙙 𝙨𝙚𝙚𝙠 𝙞𝙣𝙙𝙞𝙫𝙞𝙙𝙪𝙖𝙡𝙞𝙨𝙚𝙙 𝙖𝙙𝙫𝙞𝙘𝙚 𝙗𝙖𝙨𝙚𝙙 𝙤𝙣 𝙩𝙝𝙚𝙞𝙧 𝙘𝙞𝙧𝙘𝙪𝙢𝙨𝙩𝙖𝙣𝙘𝙚𝙨.Liability limited by a Scheme approved under Professional Standards Legislation. ... See MoreSee Less

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Brad Wright - Barrister

7 months ago

Current considerations around health practitioner liability continue to develop.Dental practitioners can be liable for the personal injuries that patients might allege against them for dental treatment. In simple terms patients can sue their treating practitioner for failed dental treatment and has been the case in common law since time immemorial. Practitioners are required to have Indemnity insurance in place personally for these purposes as one of the AHPRA registration standards.However, in recent times because of the development of more and more group practices, patients may seek to sue the practice in addition to the dentist to provided them the treatment. This arises because patients usually receive an invoice with the practice facility name on it as well as the name of the practitioner who provided the actual dental treatment. This risk can be insure with most of the indemnifiers.It is understandable therefore that patients might view their contract as having been with the practice rather than the dental practitioner who provided the treatment. Depending on how the case is pleaded, this may mean that the practice is alleged to have a liability because of some of the processes that the practice is responsible for in addition to assertions of oversight and vicarious liability which may or may not be evidence. In plain language this means that owners of dental practices are at risk of suit from patients for the personal injuries for negligent dental treatment as alleged by dentists who work at the practice and invoice through the practice.In addition where multiple practitioners treat a patient over a period of time within a practice, a patient might quite reasonably commence action against all of the practitioners who have provided treatment to the patient as well as the practice itself and the directors of the practice entity.In such cases the issue of proportionate liability arises.The Victorian Civil Juries Charge Book states at 2.1.9 in relation to apportionment that“You would need to consider, in deciding to what extent it was just and equitable that one defendant should recover contribution from the other, the extent to which each defendant, in your judgment, fell short of taking that care for the plaintiff which it should have taken in all the circumstances. In considering that matter, it would be appropriate to take into account whether, in your view, one defendant had greater control over the situation than the other. You would also need to consider, in deciding that matter, the importance of the conduct of each defendant in causing the accident and the plaintiff’s injuries…”In the circumstances there are a number of mechanisms which are appropriate for practice owners to reduce their risk in the circumstances and this can be done by way of the agreements that the practice has with the patients and with the dentist who they engaged. If this is a concern then these practice practices should seek appropriate legal advice about these protections.Somewhat more problematic and difficult to prevent is the issue of regulator action against practitioners who were only minimally involved in the treatment of a practitioner and this can be because of the practice ownership being perceived to be part of the treatment.As is well known anyone can complain about the treatment provided and the conduct by any practitioner at any time. Often, dissatisfied patients will complain about the practice and the communications of the staff as well as about the dentist who provided the actual treatment.Then issues of shared care responsibility arise. The Dental Board Code of Conduct has a shared care provision including the followingGood practice includes that you:a. take reasonable steps to ensure that any person to whom you delegate, refer or hand over to has the qualifications and/or experience and/or knowledge and/or skills to provide the care neededb. understand that, although as delegating practitioner you will not be accountable for the decisions and actions of those to whom you delegate, you remain responsible for the overall management of the patient and for the decision to delegate, andc. always communicate sufficient, timely information about the patient and the treatment needed to enable the continuing safe care of the patient.However practice owners are at some risk of being involved in patient complaints in matters connected to treatment such as patient recalls communications with patients and even infection control.It is prudent for practice owners particularly to review these processes and minimise their risk by way of clear communications and policies.Consider:Indemnities in service agreements or independent contracts.Insurance cover for engaged dentists and the corporate who owns the practicePatient Consent forms including an explanation of practice arrangements.Consistent policies and reviews of communications with patients about these issues.Brad WrightMay 2025This short article is not intended as legal advice and is for general information only. Any practitioners who consider the issues arise in this article that give them any concern should seek independent legal advice from an appropriately qualified legal practitioner.Liability limited by a Scheme approved under Professional Standards Legislation. ... See MoreSee Less

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