Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
Is there a name for medical records that are almost 30 years old?
I received a request (actually a demand) for a patient’s medical records from the last century. Apparently, a California woman was suing a shopping center, presumably related to a slip and fall (though I do not know). I responded they likely had the wrong person. I left California in 1994. No, they replied, they had the right person. The defined the address I worked at in San Diego – decades ago.
I have not had any such records for decades. I told them so. They said they needed my affidavit to that effect.
I assume the defense attorney was just padding his bill by doing a broad search of all medical records. Why? To see if the patient, now the plaintiff, had some pre-existing condition that might mitigate the dollar value of the current legal case. But I don’t know. Perhaps it’s relevant.
I still don’t have the records.
So, how long should you retain a patient’s records?
The most important reason is to provide information on a patient’s care to other healthcare professionals. A second important reason is to protect you, the healthcare professional.
Every state is different. Some have statutes that mandate the minimum retention period. Others have regulations and case laws that provide guidance. And some states have no hard and fast rules.
Let’s look at one state, California.
In California, there is no general law (statutory or regulatory) requiring a physician to maintain medical records for a specific period of time. So far, so good. But the analysis does not end there.
- The Knox-Keene Act requires that HMO medical records be maintained for a minimum of 2 years under Title 28 of the California Code of Regulations (CCR) section 1300.67.8(b).
- Several laws specify a 3-year retention period, including Health and Safety Code (HSC) section 1797.98e(b) (for services reimbursed by Emergency Medical Services Fund), and HSC section 11191 (when a physician prescribes, dispenses, or administers a Schedule II controlled substance).
- In Workers’ Compensation Cases, qualified medical evaluators must maintain medical-legal reports for five years under Title 8 CCR section 39.5(a). HSC section 123145 indicates that providers of health services that are licensed under sections 1205, 1253, 1575, or 1726 shall preserve the records for a minimum of seven years following the discharge of the patient.
- Welfare and Institutions Code section 14124.1 (which relates to Medi-Cal patients) specifies a 10-year retention period.
Next, you may have contractual provisions requiring you to maintain records for some period of time. The contractual obligations may be with your professional liability carrier, insurance companies, managed care organizations, etc. These contracts might specify how long you need to keep records, at a minimum, for some of your patients. The time period will vary with each contract.
Finally, litigation is always a threat. You’d like the record to be available to defend you. In California, the statute of limitations for an adult is one year from the date the patient learned of or should have learned of the injury or three years from the date of the medical event that led to the injury. But no longer than three years from the date of the medical event.
Is the statute of limitations ever malleable? Let’s go down memory lane.
The decision of the California Supreme Court in Brown v. Bleiberg (1982) 32 Cal.3d 426, 186 Cal.Rptr. 228 allowed a patient to bring an action 12 years after surgery because it was unclear whether the physician explained the surgery sufficiently to enable the patient to discover the negligent cause of her injury. In Warren v. Schecter (1997) 57 Cal.App.4th 1189, 67 Cal.Rptr.2d 573 rev. denied, a multi-million dollar verdict was upheld in a case which was not filed for 8½ years after the surgery. The court concluded that the complication of the gastric surgery did not manifest for 8 years, and that until that risk manifested there was no “injury” for purposes of the statute of limitations.
There’s a clear benefit to having a record to defend yourself.
In California, how long should one keep records? There’s no perfect answer. Perhaps between 7 and 10 years. And, every state will be different. With that in mind, it’s hard to argue the case to systematically get rid of records before seven years.
Oh, we were mainly talking about adult patients. If you take care of children, retention periods are even longer.
What do you think?
Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
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 2021 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.
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Here is a twist. When a patient request her records to be sent to her new physician is the old practice required to send all records or just the most recent visits. Op notes and test results also??
I went down this pathway when I closed my practice and retired. First I contacted the state medical association, then the specialty society for the state, then the AMA, then the national specialty society. I contacted my state board of medicine. The consensus with no one having an absolutely definitive response was 6 years. But wait that is not the end of the line Medicare with electronic records expects the records to be kept in perpetuity.
My electronic billing software, once I left office, was no longer on a subscription, was not updated. Hence about 3 years later when I went to look up billing records there were none that were accessible. 9 years out from retirement, with my records in a large storage unit with over a hundred large file boxes, I decided to look at options.
Option A continue to spend over $1000 per year to maintain storage. These are not HVAC controlled units, so the typical bugs spiders, and moldiness set in.
Option B have the records scanned in professionally. Cost was going to be in the thousands of dollars.
Option C scan the records in myself. Well if I had the time to devote to it with so many storage boxes full of records it would have taken months and I would have needed a high speed scanner. It was unclear if pages were going to be suitable to be scanned (too damp, carbon paper copies, etc etc).
Option D shred the records myself. I made an attempt. 3 file boxes. I had to lift these heavy boxes into the trunk of my car, transport them to my garage, spray them for bugs, and the start taking them out of folders and taking off large paper clips or binder clips. 3 file boxes took my wife and I all day to shred, and we were keeping dutiful records of the name, ssn, date of destruction etc. We were exhausted at the end of the day. Our 25 page at a time shredder got so hot it overheated and the breaker on the unit popped, forcing us to let it cool for half an hour.
Option E we shopped around (as there is a huge variation in cost), and hired a firm to cart away the records and shred them on their site. We got a chain of custody document and a destruction certification certificate. Do we have that broken down by patient name, DOB, SSN. No. Even though that is what is recommended, whoever made that recommendation obviously never faced actually having to destroy the records.
We decided to act when we did because it was beyond any time frame we had been told by our attorney (yes we consulted our attorney too), and it was beyond medicare requirements.
The records were not getting any newer and we were not getting any younger. In the event that I died I did not want to leave this burden to my wife or kids.
Beyond that, any information in those files would have been worthless to any medical professional as it was just too old.
If one sells one’s practice to a hospital the hospital can become the custodian of records. But my general understanding is that after 10 years they start destroying records as well.
I know of one retired physician who hit financial hard times, and he could no longer afford to pay for the storage unit (or anything else). The local storage company owner dumped boxes of records on the driveway of the retired physician’s house. Fortunately his son still lived in the area, and I alerted him to what had transpired and he took care of his dad’s old records.
Medicare’s expectation that electronic records will be available in perpetuity is also complete nonsense. File formats change, operating systems change, and it is not reasonable to expect that electronic records will last for anything more than 10 years. They may require it, but hospitals can only do the best that they can do.
As far as the malpractice liability clock, which for minors can be age of majority plus 2 years or more depending upon the state, is absurd. This is just an opportunity for fishing for protracted periods of time. We as physicians have allowed this nonsense to be perpetuated.
If someone has not had a bad outcome within a year of surgery for example then the liability clock should stop. It should not be any different for minors. We have a major malpractice crisis in this country where physicians are not doing what they are trained to do for fear of bad outcomes. In my area, there are many folks awaiting joint replacements because they are overweight and the surgeon will not operate on higher risk patients because it will sully his five star reputation, based on just cherry picking the best risk cases. That is terrible for the patients who are left without joint replacement that they need.