When paper charts were the norm, a common question was how long you are required to keep medical records. Paper charts took up space. The more records you had, the more file cabinets you needed. And if the records spilled over, you needed to place such documents in storage. That storage facility had to be secure. And you’d need reasonable access.
With digital records, the space requirement moved to digital. While hard disc space is seemingly unlimited, it isn’t. There’s a cost per GB. And, the larger the database, the slower access to individual records may be. Finally, unlike paper records, if you lose a hard disc, you may lose everything if backup was not performed or failed.
State law, regulation, or Board policy determine how long you must keep medical records.
Statute:
Arizona:
Ariz. Rev. Stat. § 12-2297. For physicians,
Adult patients 6 years after the last date of services from the provider.
Minor patients 6 years after the last date of services from the provider, or until patient reaches the age of 21 whichever is longer.
Regulation:
District of Columbia
D.C. Mun. Regs. tit. 17 § 4612
A licensed physician shall maintain a record for each patient that accurately reflects the evaluation and treatment of each patient. These records shall be kept for three (3) years after last seeing the patient, or three (3) years after a minor patient reaches eighteen (18) years of age.
Board of Medicine:
Oregon:
You are advised to keep patient records, including those of deceased patients, for a minimum of ten years after the patient’s last contact with the licensee. If space permits, indefinitely retain records of all living patients. This is not a Board requirement, but this guideline will help you meet the Oregon Statute of limitations.
Note, this appears more of a suggestion than a requirement.
Some states, like California, only speak of hospital retention of records, and not physician retention of records.
Cal. Code Regs. Tit. 22, § 70751 addresses health facilities.
Patient records including X-ray films or reproduction thereof shall be preserved safely for a minimum of seven years following discharge of the patient, except that the records of unemancipated minors shall be kept at least one year after such minor has reached the age of 18 years and, in any case, not less than seven years.
What’s in it for the doctor? Well, retention of records may actually protect YOU. If you are sued, you will need/want the medical records to defend your care.
And a case can be made for hanging on to records for at least ten years. That case was the 2019 Supreme Court ruling, Cochise Consultancy Inc. v. United States, ex rel. Hunt. The Cochise case dealt with the federal False Claims Act – which is triggered by filing false claims for reimbursement, for example, to Medicare and Medicaid. These false claims require knowledge – knowledge means “actual knowledge” or “deliberate ignorance.” Actual knowledge equates to intentional fraud. An example of deliberate ignorance or willful blindness (a lower standard) is coding all E/M visits as level 5 without verifying the visits meet those requirements.
The False Claims Act (FCA) can trigger civil and criminal penalties. Money and/or prison.
Getting into the weeds on the Cochise case:
The result of Cochise’s medical record retention law hinges on interpretation of the FCA statute of limitations/repose. Here’s how:
- The private citizen in the case (Hunt) filed a qui tam (whistleblower) complaint against Cochise Consultancy. He filed the claim more than six years after the incident in question allegedly occurred, but less than three years after he notified a government official.
- The government opted not to intervene in the case, leaving the litigation to Hunt.
- Because of that, Cochise argued that only the 6-year statute of limitations applied. Hunt’s claim exceeded that 6-year statute of limitations, so if the court ruled in favor of Cochise, it would mean that the FCA violation claim was no longer valid.
- The court disagreed with Cochise. They ruled that Hunt filed within three years of notifying a government official—even though the government didn’t intervene—and within 10 years of the alleged violation.
- They also clarified that knowledge of a violation by a private citizen does not trigger the three-year statute of limitations. Therefore, Hunt’s claim against Cochise was valid.
So, if you ever need to defend against an allegation triggered by the False Claims Act, the ten-year period will rule.
Given how painless it is to maintain digital records, the general recommendation is to keep records for a minimum of 10 years or whatever your state law mandates, which is longer.
What do you think?
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With decades of combined experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
Paper records. When I retired, I consulted with my attorney, and the state board of medicine which referred me to the state medical society, which referred me to the AMA. My malpractice carrier referred me to the AMA. The best information at the time was to keep records for 6 years. But Medicare at the time was making noises about having records kept indefinitely (at least electronic records). That was never implemented as a defined standard. It was impractical as a matter of course, since the paper records were stored in a storage unit. Retrieval was difficult. Storage was expensive. Scanning paper records was even more costly. After the 6 years elapsed, I kept the records for several years more. But at that point no requests for records, came in. Eventually, I had the records shredded by a professional company that produced a record of destruction. The variability in cost of shredding varied 4 fold from one vendor to another. The cost was significantly decreased by having the shredding company do the shredding off site compared to onsite.
In the realm of electronic records, eventually those that are kept are of no use to anyone.
What happens to any remaining records with the eventual death of a physician? No one seems to know. Hopefully the family would have the good sense to just destroy them if they had not been destroyed previously.
Format changes with vendors may make older versions of electronic records unreadable. As I recall about 25 years ago our billing software company changed software making any prior records unavailable by being unreadable. In fact as Windows evolves legacy support for older versions of electronic records, from either the EHR vendor or the billing software company, evaporates. At some point records are of no use to anyone, but may also be irretrievable.
It was also interesting to see that paper records for hospitals were only stored for a certain amount of time before they too ran out of space and started shredding documents.
Beyond a certain point in time even older medical records are no longer relevant. Take for example a genetic disease such as malignant hyperthermia for a particular patient. After a certain amount of time, the anesthetic agents change, the anesthesiologist is retired or dead, and the patient may not remember any details. In addition, it seems that younger physicians do not consult the old medical records in the same way that we retired physicians did when we were in practice.
As far as malpractice issues are concerned, the record retention could be as long as forever.
State laws that permit a suit to be filled within 2 years of the date of discovery of injury, could stretch the record retention period practically forever.
In the event of children, malpractice in some states stretches to the age of majority (age 18) + 2 years. Hence the need for tail malpractice coverage.
As far as fraud issues are concerned, this can also stretch to forever since apparently there is no statute of limitations on felony cases, as improbable as that might seem.
It would be interesting to know if such cases have been brought against long retired physicians.
For tax purposes record retention is 6 years, for the IRS, but most tax attorneys state that the record retention should be forever for tax returns AND supporting documents.
That is not reasonable either. What is the record retention like after the physician dies.
Medicine is unique in the record keeping and retention time requirements.
Who bears the cost of transferring electronic files from one hard drive or solid state drive, or server to another, backing things up off site etc. etc.
Who bears the cost of keeping up with the hardware requirements.
It would be useful if there was a uniform national standard that was reasonable, such as 6 years.
Ten years seems far too long with too many burdens on the physician or hospital that is keeping the records.
How long are attorneys required to keep records?
What about any other field?
Are physicians the only ones burdened with keeping records for extending time periods.
I have used the same EMR for 19 years and have nearly 2 TB of data. We are able to still use the EMR and as long as I can emulate Windows XP or Windows 7, we have access to the records. (a little wonky with Windows 11). I still have copies of my college papers circa 1992 on floppy 3.5 disks and can still access them with older working computers (my 2000 MacBook Pro). The only reason to destroy records was when you had paper charts and you needed to start clearing space. The real question is how far back in time can people sue for your event occuring X of years ago.
Dentists, also, are required to retain records for eons. I am a dinosaur. I don’t trust computers as far as I can throw them. I maintain paper charts (which saved me twice when I lost data – 3 months worth the first time and 1 1/2 years worth the 2nd time. Interesting stories there.) I shred records after 7-10 years.