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      Medical Record Retention

      A number of variables affect the length of time a physician should keep a medical record. Factors include state and federal laws, medical board and association policies, and the type of record (for example, that of an adult patient versus that of a pediatric patient). The following information can guide you in developing a medical record retention policy.

      Basis for Keeping Medical Records
      The most important reason for keeping a medical record is to provide information on a patient’s care to other healthcare professionals. Another major rationale is that a well-documented medical record provides support for the physician’s defense in the event of a medical malpractice action.

      Entries made in the medical record at or near the time of the event are regarded as highly reliable evidence in subsequent judicial procedures. Without the medical record, the physician might not be able to show that the care he or she provided was appropriate and, thereby, met the standard of care. Relying on the practitioner’s general habit and practice to show that the standard of care was met—without supporting documentation to establish what treatment was actually rendered—often fails to convince the finder of fact that the treatment the patient received was consistent with community standards.

      State and Federal Laws
      For the most part, state and federal laws regarding mandatory record retention requirements apply to hospitals or similar facilities rather than to physician practices. The Medicare Conditions of Participation (COP) require hospitals to retain records for five years (six years for critical access hospitals),1 whereas OSHA requires an employer to retain medical records for 30 years for employees who have been exposed to toxic substances and harmful agents.2 HIPAA privacy regulations require records to be retained for six years from when the record was created,3 which follows the federal statute of limitations for civil penalties.4

      Medical Board and Medical Association Policies and Recommendations
      When state or federal laws are silent on medical record retention, medical boards may be able to provide policies or recommendations on how long a physician should keep records. For example, the Colorado State Board of Medical Examiners Policy 40-07 recommends retaining medical records for a minimum of seven years after the last date of treatment for an adult and for seven years after a minor has reached the age of majority, or age 25. The California Medical Association has concluded that, while a retention period of at least 10 years may be sufficient, all medical records should be retained indefinitely or, in the alternative, for 25 years.5

      Case Law
      A decision by the California Court of Appeal (Fourth District)6 discussed the protection traditionally afforded to physicians by the statute of limitations. The court ultimately held (consistent with state law) that when an injury or abnormality does not manifest itself within the statute of limitation or if the patient could not have discovered that the injuries were caused by wrongdoing within the required time frame, the limitation period is not triggered. As such, the required time for the patient to bring a malpractice action may be extended for an additional period after the care was provided.

      Recommendations
      Medical record retention laws and regulations differ from state to state. It should be emphasized that once a record is destroyed, it is difficult—if not impossible—to defend the case. Physicians should contact their attorneys for guidance. For example, in California, where there is no statutory requirement, the California Medical Association recommends that medical records be retained indefinitely or for at least 25 years after the patient’s last visit. Due to the impracticality of this recommendation, the following criteria are suggested as minimum standards in California:

      • Adult patients, 10 years from the date the patient was last seen.
      • Minor patients, 28 years from the date of birth.
      • Deceased patients, five years from the date of death.

      Some states allow records to be retained in an electronic format. For example, a paper record may be scanned to a computer or kept in another electronic format. Paper records should be stored with a reputable document storage company.

      Many companies offer alternative methods for document management, such as electronic scanning and storage. Storing closed or archived records at your residence puts the records at risk of damage from fire or flood, loss due to theft, or other unauthorized access. You should also check state statutes and professional licensing agencies for state-specific requirements or recommendations.

      What Records Should You Retain?
      Retain all records that reflect the clinical care provided to a patient, including provider notes, nurses’ notes, diagnostic testing, and medication lists. Retain records obtained from another provider for the same length of time as those in your record. This is especially true if you have relied on any of the previous records or information when making your clinical decisions.

      Review patient bills for any reference to care provided. For example, review a bill to determine if it shows a limited examination or an annual physical with diagnostic tests obtained or requested. If the billing document shows that care was provided, it may be in your best interest to keep the bill for as long as you retain the medical record. Otherwise, you need to retain the bill for the same length of time as other business records and in accordance with federal and state income tax requirements.

      We understand that storing medical records for the recommended time can have a financial effect on the physician or practice. Given the importance of the medical record in defending a malpractice action, however, it is vital to ensure that the record is available to defend proper care.

       

      References

      1. 42 CFR § 482.24(b)(1) and 42 CFR § 485.638(c).
      2. 29 CFR § 1910.1020(d)(1).
      3. 45 CFR § 164.530(j)(2).
      4. 42 CFR Part 1003.132
      5. Retention of Medical Records, Document #4005, CMA On-Call, www.cmanet.org.
      6. Kitzig v. Nordquist, 81 Cal. App 4th 1384, 97 Cal Rptr 2d 762 (2000).

       

      By Richard Cahill, JD, Vice President and Associate General Counsel, The Doctors Company.


       

      The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each health care provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

      J9768 6/14


      FIRST IN PATIENT SAFETY   |    www.thedoctors.com/patientsafety

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