Why Should I Keep Medical Records So Long?
A frequent call to our risk management helpline involves medical record retention. My standard advice of “retain as close to indefinitely as reasonably possible,” is typically met with resistance. I completely understand that paper records take up space, and it is expensive to securely store the records. However, the old saying is true – your record is your defense. One inquiring physician, after hearing my advice, recently offered the following two “but, what abouts:”
What about the statute of limitations? Statute of limitations laws set the period during which specific types of legal actions may be brought against you. If you are using the statute of limitations to guide your record retention period, you should keep at least these three points in mind:
- The statute of limitations is not a bar to a suit being filed. Rather, it is an “affirmative defense” that is relevant only if raised by the defendant – and we hope it is one of many defenses we can raise. But even if raised as a defense, the case may not be dismissed.
- There are many exceptions to the statutes of limitation. Depending on the nature and wording of a complaint, suit may be brought against you even if brought beyond the limitation period. For example, there are exceptions allowing for “tolling” or extending the time in cases where the patient is a minor or where mental incompetency is alleged.
- Some actions that can be brought against you may not have a statute of limitations. For example, your state may not limit the time for bringing actions involving fraud or conspiracy. And these laws may not apply to government investigations, whether for Medicare billing actions or licensing board actions. Our record in the office for licensing board complaints is a complaint filed 18 years after the patient had ended treatment. As you know, many licensing boards have to investigate all complaints, no matter how meritless they are. In this instance, the psychiatrist had his records, and the licensing board thanked him for having the records so they could dismiss the complaint quickly!
What about my state’s law regarding medical record retention? Most states have retention requirements for hospital records, but not all have requirements for physicians in private practice. Even if there is an applicable retention period in state law, understand that that period is intended to protect the patient, not you. The Florida Medical Board expresses this clearly in its regulation (64B8-10.002):
“…the Board is concerned that the promulgation of these rules may mislead the licensed physicians…Physicians should retain records as long as needed not only to serve and protect patients, but also to protect themselves against adverse actions. The times specified in Rule 64B8-10.002, F.A.C., may well be less than the length of time necessary for protecting the physician. Further, the times stated may fall below the community standards for retention in their communities and practice settings and for specific patient needs. For the latter purposes, the physician may wish to seek advice from private counsel or their malpractice insurance carrier.” (emphasis added)
If pushed for a minimum number of years for retention, my risk management recommendation is at least 15 years. But lest you think I am totally unreasonable, I have told at least one caller that retention is no longer required. When the caller said that he had retained records for more than 30 years, even I said it was time to get the shredder! Whenever you decide retention is no longer necessary, be sure to log the records to be destroyed (name and date of birth should suffice) and shred the records completely.
When considering whether to retain or destroy, keep in mind that the fact that you no longer have a record will not preclude suit from being filed against you. Without a record, the case will be very difficult to defend – we likely will not be able to retain an expert to support your care, and it will be very difficult for you to testify effectively as to your care, particularly during cross-examination.
My takeaway point is that in any action against you, your record is the primary means of supporting and defending your care.
If you would like more information on this topic, you can click here for our article.
Donna Vanderpool, MBA, JD
As Vice President of Risk Management, Ms. Vanderpool is responsible for the development and implementation of PRMS’s risk management services for The Psychiatrists’ Program. Ms. Vanderpool has developed expertise in the areas of HIPAA and forensic practice, and has consulted, written and spoken nationally on these and other healthcare law and risk management topics. She most recently contributed to a chapter in Gun Violence and Mental Illness (APPI), authored chapters on telepsychiatry in Mental Health Practice in a Digital World (Springer) andPsychoanalysis Online 2(Karnac). She also has co-edited and contributed chapters to several other clinical textbooks. Prior to joining PRMS in 2000, Ms. Vanderpool practiced criminal defense law, taught business and legal courses, and spent eight years managing a general surgical practice. Ms. Vanderpool received a Bachelor’s degree in Business Administration and Management from James Madison University. She also earned a Master of Business Administration degree and Juris Doctor degree from George Mason University.Follow Donna on LinkedIn.