Comprehensive Dental Records as an "Evidentiary Tool" in Defending Legal Claims Through Limitations Act

 

  A. Purpose of Clinical Records  

 

Maintaining thorough clinical records is essential to a dentist’s practice for several reasons. Good record-keeping documents the range of services provided, minimizes errors that could lead to complaints or malpractice claims, and can serve as a powerful defense in legal disputes by demonstrating diligence and adherence to standard care. If a lawsuit arises, comprehensive records can substantiate a defense of non-negligence, potentially curtailing the action early on. Additionally, maintaining accurate records is legally mandated, with provincial legislation emphasizing that failure to do so is professional misconduct. Inadequate records compromise both patient safety and practitioner protection.

 

  B. Contents of Dental Records  

 

Dental records must be complete, accurate, current, and organized to support patient care and legal compliance.

 

  Accuracy:    

Each patient’s dental records should include:

 

- Patient’s full name

- Treatment date(s)

- Comprehensive and current medical and dental history

- Allergies and current medications

- Chief complaints and reason for visit

- Patient’s expectations of care

- Clinical findings and differential diagnosis

- Proposed treatment plan and details of the discussion with the patient

- Informed consent documentation

- Warnings or discussion of possible complications

- Referrals or recommendations

- Record of treatment provided and follow-up

- Communication with other practitioners or referrals

- Record of missed appointments

 

The practitioner’s opinion on the quality of care by others, along with communications with legal advisors or insurers, should be excluded from patient records.

 

  Legibility:    

To ensure clarity, records should be:

 

- Written in ink or typed, avoiding the use of pencil

- Verified for accuracy if transcribed from dictation

- Accompanied by diagrams for complex cases, such as locations of lesions or abnormalities

 

Corrections should be initialed and dated, and no changes should be made after a claim or problem is reported.

 

  Currency:    

Each entry should include the date created, and records should be updated promptly, preferably during or immediately following the patient’s visit.

 

  Organization:    

Effective records management includes reading, verifying, and updating patient records before each visit.

 

  C. Keeping Electronic Records  

 

With many practices going digital, it is crucial to adopt secure practices for electronic dental records, including:

 

- Secure login and password protections

- Capability to retrieve and print all stored information

- An audit trail to track access and modifications

- Linkage between clinical and financial data

- Chronological and secure data entry that prevents unauthorized edits

- Regular backups on removable storage to prevent data loss or inaccessibility

 

  D. Record Disclosure and Confidentiality  

 

Dentists must maintain strict confidentiality for both physical and electronic records, disclosing information only per a consistent office policy, with patient consent, or as mandated by law. Dental records encompass not only written documents but also x-rays, molds, and casts.

 

While practitioners own the physical record, patients hold a possessory interest in the information. Therefore, patients have the right to review and request copies of their records. Record disclosure should be limited to patient requests, court orders, or requests from regulatory bodies. In rare cases, access may be denied if it is deemed harmful to the patient.

 

In certain jurisdictions, such as British Columbia, dentists can release information to protect the patient or public health. However, confidentiality remains paramount unless mandated by law, such as for child abuse, serious threats, or notifiable diseases.

 

  III. Limitation Periods for Dental Malpractice Claims

 

Legal action against a dentist is subject to statutory time limits. Each Canadian province has legislation dictating time limits for actions related to professional negligence or injury claims.

 

  A. Postponement and Discoverability  

 

Limitation periods may begin from the date of the incident or, in some cases, from the date the patient became aware of the injury. This principle, called "discoverability," helps injured parties seek recourse even if the harm only becomes evident years after treatment. Generally, the limitation period starts when a patient is aware or should reasonably be aware of the following:

 

1. They have sustained an injury.

2. The injury is partially or wholly attributable to the dentist’s conduct.

3. Legal action is an appropriate course of action.

 

Some provinces codify these principles within limitation statutes, whereas others rely on common-law principles for discoverability. However, if legislation specifies a limitation period that begins upon the occurrence of a certain event (such as treatment completion), discoverability rules may not apply, and the time limit may be fixed regardless of when the injury was discovered. 

 

  C. Final Limitation Period  

 

In many provinces, irrespective of discoverability, legislation enforces a final limit on the time allowed for bringing a claim, after which it is entirely barred. Known as the “ultimate limitation period,” this timeline typically ranges from 10 to 30 years, depending on the province, and applies whether or not the injured party knew or should have known of the injury. This time cap reflects a policy choice to prevent indefinite liability exposure for defendants, ensuring a point beyond which no claims can be pursued.

 

  D. Individuals Under Disability  

 

All Canadian provinces have statutes that extend limitation periods for minors or individuals unable to manage their affairs due to mental incapacity. Under these provisions, limitation periods do not begin to run while the affected party is a minor or otherwise unable to manage personal matters. Consequently, time is “tolled” or suspended until the individual reaches majority age or gains the capacity to handle their own affairs.

 

The following outlines the limitation legislation in various Canadian provinces:

 

  E. British Columbia  

 

The previous Limitation Act in British Columbia imposed a two-year limit for personal injury claims, including those against dentists, from the date the right to sue arose. However, some patients challenged this limit for dental claims, arguing that a six-year limitation for breach of contract should apply instead. This led to inconsistencies, particularly when a dental service purchased by contract resulted in personal injury. 

 

In 2013, the "new" Limitation Act replaced the previous law, establishing a two-year limitation from the date the claim was discovered, regardless of whether it’s brought under tort or contract law. For incidents predating June 1, 2013, the old Act still applies.

 

The old Act also specifies that for claims related to professional negligence, the clock does not start until the claimant is aware of the defendant’s identity and other key facts, which would reasonably inform them of a viable case. Under the "new" Act, discoverability principles persist, and the limitation period begins when the claimant is aware, or ought to be aware, of these facts:

 

   - an injury, loss, or damage has occurred;

   - the cause of injury stems from an act or omission;

   - the responsible party is identifiable; and

   - litigation is deemed appropriate to address the damage.

 

If a claimant is under a legal disability, such as minority or incapacity, the period does not commence. The "new" Act also introduced a 15-year ultimate limitation period from the date of the event, encompassing all claims arising from occurrences discovered on or after June 1, 2013.

 

  F. Alberta  

 

In Alberta, the Limitations Act mandates that a claimant has two years from the date of discovery to seek remedial action, relevant in dental malpractice claims from when the act, omission, or negligent conduct occurs. The Alberta Court of Appeal has noted that each distinct injury may reset the “discovery” timeline, allowing for varied discoverability periods based on when each injury is identified.

 

Notably, Alberta’s Act places the responsibility on claimants to prove that they pursued their claim within the statutory period. Limitations are tolled if the injured party is a minor or under mental disability and resume once the claimant regains capacity.

 

  G. Saskatchewan  

 

Under Saskatchewan’s updated Limitations Act, claims against dentists now fall under a two-year limitation period, commencing upon discovery. The Act includes a discoverability provision, so this timeframe does not begin until the claimant is aware, or should reasonably be aware, of the injury and its connection to the dentist.

 

Saskatchewan’s statute also pauses limitation periods for minors and individuals with mental incapacity, provided they have no guardian aware of the claim. Regardless, an ultimate 15-year limit is imposed on all claims, necessitating that latent injury claims be filed within 15 years of the service date.

 

  H. Manitoba  

 

In Manitoba, dental malpractice claims are governed by the Dental Association Act, which stipulates a two-year limit from when the professional service was last provided. Manitoba’s Limitation of Actions Act allows for a possible extension if an applicant proves that the full facts were only realized within twelve months prior to filing. However, common-law discoverability is not applicable; any extensions must be based solely on provisions within the Limitation of Actions Act.

 

Moreover, Manitoba’s Act suspends limitations for minors or those unable to manage their affairs due to mental incapacity, but caps any claims after 30 years from the occurrence of negligence or malpractice.

 

  C. Ontario:  

 

The Ontario Limitations Act, 2002 outlines a general two-year limitation period for initiating claims, beginning on the date a "claim was discovered." This Act applies to all malpractice or negligence claims, including those against dental professionals.

 

Under Ontario law, a claim is considered "discovered" when the claimant became aware, or should have reasonably become aware, that an injury had taken place, that the injury was caused by the defendant, and that a legal proceeding would be a suitable method to seek damages. If not proven otherwise, it is presumed that discovery of the claim occurred at the time of the event.

 

In  Brown v. Wahl , the court dismissed an argument by the patient who claimed that the dentist's negligence was only realized upon receiving an expert report. Similarly, in  Verombeck v. Jerome , a claim was deemed to have been discovered when another dentist performed restorative work on the same tooth at the center of the case. A claim is often considered “discovered” through various indicators, such as restorative treatments, filing complaints, or engaging legal representation, as indicated by case law, including  Conidis v. Tait .

 

There are instances, like in  Barry v. Pye , where an expert opinion may be necessary to uncover new facts, such as learning about the use of incorrect surgical instruments—a fact only an expert could reveal. This exception usually applies to complex cases requiring specialized knowledge to understand the cause of injury.

 

The limitation period is delayed while a claimant is a minor without a litigation guardian. It is also extended when the claimant is unable to pursue legal action due to physical, mental, or psychological incapacity unless they have a litigation guardian representing their interests.

 

The Act includes a 15-year ultimate limitation period for all claims from the date of the event that gave rise to the claim, regardless of when it was discovered.

 

  D. New Brunswick:  

 

New Brunswick’s Limitation of Actions Act establishes a two-year limitation period for claims, which starts upon discovery of the claim. This legislation replaces the Medical Act, which required that claims against medical practitioners, including dentists, be filed within two years from the last date of services or one year after the claimant was aware of the facts relevant to the alleged malpractice, whichever was longer.

 

For minors and those legally incapacitated, the limitation period extends one year past the date on which they gain full capacity or mental competency.

 

An overarching 15-year ultimate limitation period also applies, starting from the event date that led to the claim.

 

  E. Nova Scotia:  

 

Nova Scotia’s Limitation of Actions Act requires that claims related to professional negligence or malpractice, such as dental services, be initiated within two years after the completion of services.

 

Given that the Act specifies that the limitation begins from service termination, common-law principles of discoverability generally do not apply to dental malpractice cases. In  Smith v. McGillivary , the court noted that discoverability is relevant only when a statute does not define when a limitation period starts.

 

However, the Act allows for the possibility of extending the limitation period by up to four years in specific situations, with the court weighing factors that could impact either party’s interests.

 

The Act’s provisions also apply to individuals under legal disability, allowing actions to be filed up to five years after a minor reaches adulthood or recovers full mental capacity.

 

Thus, Nova Scotia’s effective ultimate limitation period for dental malpractice appears to be six years.

 

  F. Newfoundland and Labrador:  

 

In Newfoundland and Labrador, the Limitations Act imposes a two-year limitation period for claims of professional negligence, including those against dentists, starting from the date of injury.

 

The Act also includes provisions to delay the limitation period when claimants are unaware of the cause of action due to specific circumstances, and it does not begin until the claimant knows, or reasonably should know, of the need to pursue legal action.

 

The limitation period is also postponed if the claimant is legally disabled—such as being a minor or mentally incapable of managing personal affairs—until the disability ends.

 

There is an overall ten-year ultimate limitation period, regardless of discoverability or disability status.

 

  G. Prince Edward Island:  

 

Under Prince Edward Island’s Dental Professions Act, malpractice or negligence claims against dentists must be brought within six months of the last professional service provided.

 

Courts have ruled that “professional services” refer to services outlined in the Dental Professions Act as constituting dental care.

 

For those with a legal disability, the Statute of Limitations allows two years from the time the disability ends to initiate claims.

 

Due to a lack of statutory discoverability in the Dental Professions Act, common-law principles generally apply. However, trial judges typically determine discoverability on a case-by-case basis, and there is uncertainty about whether common-law principles of discoverability would hold if the Act’s limitation period does not align.

 

If no statutory discoverability applies, the ultimate limitation period for claims against dentists in Prince Edward Island would likely default to six months.

 

In summary, both comprehensive record-keeping and awareness of limitation periods are essential components of risk management for dental practitioners, as they safeguard patient care, ensure compliance with regulatory obligations, and provide critical support in legal proceedings.