Medical Justice provides free 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 free consultation – or use the tool shared below.

The “classic car” moniker applies to vehicles over 20 years old. Antique cars are over 45 years old. Vintage cars were built between 1919 and 1930.

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 free 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 free consultation – or use the tool shared below.

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 over 50 combined years of 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.