In Georgia, when a patients suspects that they are the victim of dental malpractice and request their file, the dentist must give the patient a complete copy of their file, including all radiographic materials such as x-rays and cone beam CT scans. As a Georgia lawyer who regularly handles dental malpractice cases, I receive calls from irate patients who have properly requested a copy of their file but are being stonewalled by the dentist. In most cases, the dentist feels safe in refusing to provide the patient file, and in doing so, feels as if this will convince the injured patient to not seek legal action. Rarely does this work and, in more cases than not, it spurs the injured patient to hire an experienced dental malpractice lawyer to obtain a copy of the file, evaluate the case, and file a lawsuit if the case has merit.
When a dentist refuses to give the patient a copy of her records after they have been properly requested pursuant to statute and appropriate notice to the dentist via certified mail, the statute of limitations (or the amount of time within which the injured patient must file a lawsuit) could be tolled for the period of time during which the dentist refuses to comply with the statutory request for the records. See O.C.G.A. Section 9-3-97.1.
O.C.G.A. Section 31-33-2 provides, in pertinent part:
“Upon written request from the patient, the provider having custody and control of the patient’s record shall furnish a complete and current copy of that record, in accordance with the provisions of this Code section.”
The refusal to timely comply with this law subjects the dentist to an immediate lawsuit seeking an emergency court order for the records. This lawsuit should be easily won by the patient and that would hold the dentist liable for all costs and expenses, including reasonable attorney’s fees incurred by the client/patient.
Both federal privacy laws such as HIPAA and 45 CFR § 164.512 and Georgia state laws such as OCGA § 31-33-3 require release of the records, if they are properly requested and the requested is accompanied by a proper medical records release.
The law in this respect is in the injured patient’s favor, but to take advantage of these laws, protections and tolling of the statutes of limitations, the request must be made properly and be technically accurate or the statutes will not provide any protection, tolling or other benefits because, as always, statutory relief is a derivation of the common law and will be strictly construed by Georgia courts. In other words, there are many technical requirements and it is advisable to seek legal counsel to avoid not protecting all of you legal rights if you find yourself in this situation.
Robert J. Fleming is a partner in the law firm of Katz Wright & Fleming, LLC in Atlanta, Georgia and Decatur, Georgia. He is a personal injury attorney who has been handling wrongful death, dental malpractice, professional negligence, car accidents and premises injury cases for individuals and families who have been severely injured or died as a result of negligence for over 25 years. He practices in the Atlanta, Georgia area including handling lawsuits in Fulton, DeKalb, Clayton, Gwinnett, Cobb counties in Georgia and nearby cities such as Alpharetta, Chamblee, College Park, Conyers, Duluth, Decatur, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Roswell, Sandy Springs, and Stone Mountain. If you or a family member has been seriously injured and would like to discuss your case in complete confidence, contact Robert J. Fleming directly on (404) 525-5150 or contact us online. We are here to help.