My office is developing a policy regarding the retention of patients' medical records. What are the legal requirements as to how long inactive patients' charts must be retained?
There is not a simple answer to this question. Many factors must be taken into consideration.
Many states have specific legal requirements for retaining medical records. In addition, state legal requirements for retaining business records may include medical records. Because these laws vary from jurisdiction to jurisdiction, you should consult your state medical society for the requirements regarding medical and business records in your jurisdiction. Records of Medicare or
Medicaid patients must be kept at least five years. Immunization records must be kept permanently.
Statutes of limitations have numerous variables
The statute of limitations, which specifies the period after an incident in which a plaintiff may file a lawsuit, is the other factor determining the length of time for which medical records should be retained. The medical record can be the most important evidence in a medical malpractice trial. Thus, if medical records are not available, it can be extremely difficult for physicians to defend themselves against allegations of negligence.
In most states, the statutes of limitations differ for actions involving adults and minors. Typically, the length of time begins either on the date the alleged injury occurred or on the date the patient should have reasonably discovered the injury.
A minor usually has significantly more time than an adult to file a malpractice suitï¿½in some states 18-plus years. Accordingly, the period in which a patient can bring a lawsuit involving the birth of her child may differ dramatically from the time she has to sue regarding her gynecologic care.
Once again, the statute of limitations, for both adults and minors, differs from jurisdiction to jurisdiction, and you should check with your state medical society or professional liability insurance carrier for this information.
Many states have enacted statutes of repose to accompany statutes of limitations. Statutes of repose provide an absolute cutoff point for bringing a medical malpractice lawsuit. For example, a statute of repose could specify that all claims must be brought within eight years of the date of the injury.
What if medical records requirements and statute of limitations differ?
Once you ascertain the periods applicable to you for both the retention of business records and the statute of limitations, you will be in a good position to develop your medical records retention policy. We suggest keeping your records for the longer time requiredï¿½either for business records or to exceed the statute of limitations. For instance, with obstetric records, if the law on business records requires you to keep records for seven years and minors can bring a lawsuit for medical malpractice until age 16, we suggest keeping your records for at least 16 years.
Determining the length of time becomes more complicated, however, if the statute of limitations begins on the date of discovery of the alleged injury, not on the date it occurred. In this situation, a plaintiff could bring a lawsuit for an injury involving her gynecologic care for as long as three years after she discovered it or reasonably should have discovered it. Theoretically, the patient might not have reasonably discovered the alleged injury until 20 years later.
In jurisdictions where the discovery rule applies, physicians should consider keeping records permanently.
The information in this article should not be construed as legal advice.
As always, physicians should consult their personal attorneys about legal requirements in their jurisdiction and for legal advice on a particular matter.
For information on liability issues, call the Department of Professional Liability at 800-673-8444, ext 2485, or 202-863-2485.
Ask your state medical society or professional liability insurance carrier the following questions on these key issues:
- Are there specific legal requirements for retaining business records or medical records?- What is the statute of limitations for medical malpractice lawsuits as it applies to adults?
- Does this period begin on the date of the injury or on the date of the discovery of the incident?
- Does my jurisdiction have a statute of repose?
- Are there any exceptions to these laws I should know about?
- What is the statute of limitations for medical malpractice lawsuits as it applies to minors?
- Are there any other laws or regulations that might affect the retention of medical records?
- Does your local medical society or professional liability insurance carrier have any recommendations as to how long medical records should be retained?