Notes From a Plaintiff’s Attorney: Avoiding Liability in Retention of Medical Records

We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

 

As we move to paperless practices, the problem of retaining physical records will be less relevant. But for at least the next decade doctors who are closing their practices must understand what to do with bulky patient records.

 

Here, physicians faced with this unwelcome burden are tempted to cut corners, a choice that carries real liability issues.

Let’s take a look at the principles you need to understand in retaining records.

 

1. What records do I need to keep?

 

You should keep all records that relate to the care that you provided to a patient, including your notes, communications from consultants, diagnostic testing results and medication records.

 

2. How long do I have to keep the records?

 

The first level of regulation is federal.

The Medicare Conditions of Participation, which require hospitals to retain records for 5 years (6 years for critical access hospitals), apply only to facilities.

CMS also requires that Medicare-certified institutional providers submitting cost reports retain patient records for 5 years after closure of the cost report.

Medicare managed care program providers have the longest retention requirement under CMS regulations and must retain patient records for 10 years.

HIPAA follows the Federal Statute of Limitations for civil penalties and so requires retention of a record for 6 years from the date of its creation or the date when it last was in effect, whichever is later.

State requirements vary significantly.

 

For example, physicians in New York must keep the records of adult patients for 6 years after the last visit and the records of minor patients until 1 year after the child’s 18th birthday. In Colorado 7 years is the adult standard – and for minors- the records should be kept until 7 years after the child has reached 18. Texas also uses 7 years as the adult standard it and requires the records of minors be kept until they are 21 or for 7 years from the last date of treatment, whichever is longer. So, every state is different.

 

A physician who is closing his practice entirely (as opposed to one who is selling it, under which terms the incoming physician becomes the custodian of the records so there is no time limit issue) must therefore check with his own state as to its regulations.

 

Of course, irrespective of any limiting statutes, do not destroy medical records that relate to a civil, criminal or administrative proceeding if you know that the process is either pending or is already ongoing but has not yet been resolved.

 

Finally, do not be confused with the HIPAA rule on the records of deceased patients.  The 50 year requirement is only to maintaining confidentiality for that period.  It does not require retention of records for 50 years.

 

As a separate matter, keep billing records for as long as you retain the clinical records even if this is longer than is required to keep them for tax purposes because a recoupment action can span several years.

 

3. Can I just give the patient their records?

 

This depends on your state.  Some states make retention of the original record a duty of the physician such that the patient can only be given a copy.

 

However, there’s a good reason to avoid this even if your state permits it: you may need the original record to defend yourself.

 

If you are sued for malpractice or if recoupment is sought by a payor, you want to present the original as proof the chart was not altered.

 

You also certainly don’t want a patient who may later sue you being in sole control of an original chart they may later “update” for their own benefit.

 

The general 6 to 7 year retention period that most states have will cover even the period that a liberal Discovery Rule would permit a malpractice case to be brought in because it is the rare condition that will not have manifested before then and the extension for children covers the tolling of the Statute of Limitations on the basis of the patient’s minority. It will also more than cover the longest period of extrapolation that a contesting payor may exert.

 

4. Can I keep the records at home?

 

You can as long as you keep them safe and guard against unauthorized access, but it is still not advisable to do so.

 

Store with a reputable document storage company that is bonded and insured against fire and flood – coverage that you cannot get for the records at your home because they do not have a monetary value. This will demonstrate you took all reasonable precautions to protect the records if there is an eventual loss, something you would not be able to prove if kept in your garage.

 

Off-site storage with a company is also of value in complying with HIPAA and any state confidentiality laws.  In regards to HIPAA, you would execute a Business Associates Agreement with the storage facility that would make them liable for any breaches and require them to notify you of any such.

 

5. Do I have to keep the paper charts as is?

 

You may not have to.

 

For example, the Texas Medical Board only requires retaining a medical record that is “complete, contemporaneous, and legible” and does not say that it has to be the original paper version.

 

Similarly, CMS allows records that were originally on paper to be retained in an electronic or digital form.

 

Within the caveat that you should check with your own state board on this, such criteria can be met with a scanned copy if it is of sufficient quality.

The scanned records must be accessible (finding the file and opening the file) and clearly readable without data loss.

With regard to the last point, don’t try to “go cheap” on how much space the file requires by doing everything as a minimal black-and-white image. If you want to destroy the paper chart then you must replicate it. Color documents should be scanned as such and images should be done in grey-scale.

This is both your obligation to the patient, for whom you are a fiduciary custodian of their record, and a protection for you. Remember that if you ever have to use that record in your own defense it must look like the record you scanned in and not some Xerox copy that could have been altered with White-Out.

Your scanner should be set at a minimum of 300 dpi and the number of dpi should be increased as needed to ensure adequate image quality.

 

The scanned records should be saved as PDF or TIFF files.

The scanned images must be inspected visually to ensure they are complete and clear so either do the scanning yourself or entrust it only to a staff member whom you know will be diligent in the task.

If there is no time to do this inspection on a page by page basis then do a batch review, a process called sampling.  In this procedure every 10th document is reviewed for quality and the number of original paper documents is compared to the number of scanned pages to ensure that none were missed. By the way, there are professional entities that handle these details.

If the condition of the original paper record makes getting a good scan impossible then document that fact by tagging the image as “Best scan possible”.

If the damaged paper page is a particularly critical one, such as a consent form or a critical lab result, then keep the paper copy of that page in case you will need to produce it for clarification.

You should also back-up the files.
Of course, do not delete a file until the retention period that would have applied to a paper chart has elapsed.

6. What happens if I move?

The critical issue here is the patient being able to contact you. Remember that the reason for the record retention mandate is so that patients undergoing care with later physicians can have access to their records to inform that care.

You therefore must either send out your new address to all affected patients or keep a forwarding order at the post office for the entire retention period so that patients can reach you.

Remember that the records belong to the patient – you are just their custodian. Make sure that they can reach you about their records with the same ease as before you moved.

In summary: The mandatory retention of medical records is of value both to the patient who will need to refer to their prior care and to the physician who may have to defend themselves in an action that occurs only after they have closed their office. It is not advisable to give the original records to patients or to store the records informally. Records may be scanned into an electronic format if quality can be maintained and state law permits such. The physician must keep patients apprised of their current location during the record retention period.

[Medical Justice notes: If you are an employee of a group practice, and you move, the records will typically be stored with the group. In that scenario, the group will assume control of the record, making it available to the patient.

Be careful about doing favors….We recently heard from a doctor who agreed to serve as a custodian of patient records for a colleague who had voluntarily surrendered his license. The records were moved into his office.  When patients needed their records, they contacted the doctor who agreed to store the records. This doctor then decided to move to another state, but did not know what to do with the records. He ultimately contacted the original doctor to take control of the records. It is unclear whether the original doctor did the right thing and picked up the records. If you agree to store records for another doctor, understand what your obligations are; and state in writing what you are prepared to do (for example, keep them indefinitely; as long as you decide to stay in your office; 1 year,; something else; etc. ) and what the original doctor must agree to do (accept the records with 2 weeks written notice, etc.). Make sure you don’t get stuck with a surprise ball and chain.]