Records retention is a challenging issue. There is no "bright line" consistent with federal and state law which establishes how long medical records must be maintained in every case. Instead, a practice must try to piece together a patchwork of statutes, regulations, case law, and State Medical Board position statements.
As EHRs becomes more universal, the problem should be alleviated since electronic data storage is relatively inexpensive and accessible. However, the current situation places pediatricians and practices in a confusing, expensive situation where cumbersome paper records must be stored for long periods of time. That being said, every medical practice should create a policy on record retention, based primarily on medical considerations and continuity of care. They should check with their medical liability insurance carrier and legal representative prior to finalizing it. Some practices provide this policy to new patients as part of their "introduction to the practice" materials. When patients are informed in advance about how their medical records will be handled there is substantially less likelihood of a complaint to the Medical Board if/when a pediatrician must close his or her practice.
There are other reasons for retaining medical records: to provide patients with the information should they wish to access it; to protect the pediatrician in case a legal claim is made in the future; and to comply with federal and state regulations.
If a pediatrician is closing the practice and moving out of the area, it is more challenging to figure out what to do with the medical records. After providing patients with a sufficient time to pick up copies or have them transferred to another health care provider, the departing pediatrician still will have reasons to retain the records.
Options for Storage of Medical Records
It may be possible to pay for storage at a neighboring medical office. Another option is to use a secure document storage facility. Some pediatricians ask a colleague still practicing in the community to serve as custodian of the records.
Retaining medical records of minor patients is more complex. One rule of thumb is to retain the medical record until the patient reaches the age of majority (often eighteen years old, but not always) plus the statute of limitations for minors in that state. The statute of limitations is the time frame in which a plaintiff may bring a legal action against someone for a civil wrong, such as alleged medical malpractice. The statute of limitations varies by state and there are differences in the statute of limitations for adults and that for minors. To further complicate an already complex issue, some states have a "continued course of treatment" exception that specifies that if a patient is treated over an extended period of time, the statute of limitations does not start until the date of the last treatment. For instance, if a pediatrician treated a patient until he or she was 22, and the period for a malpractice action to be filed in that state is 7 years, the pediatrician would need to keep the patient's records at least until he or she is 29. A legal opinion on this matter is critically important. It is essential that the medical record be available as long as it may be used to defend against a malpractice allegation.
When a practice closes and medical records are transferred, patients should be notified that they may designate a physician or another provider who can receive a copy of the records. If a patient does not designate a physician, records may be transferred to a custodian such as a physician or a commercial medical record storage firm.
Custodians who agree to retain records can be physicians, non-physicians, or medical record commercial storage facilities.
Custodial arrangements for retaining records are usually entered into for a fee and should be in writing.
A written custodial agreement should guarantee future access to the records for both the physician and patients and should include the following points:
- The custodian will keep and maintain the medical records for the retention times specified above.
- No one can access the information contained in the medical records without a signed release from the patient or a properly executed subpoena or court order.
- The original physician or physician's personal representative will be notified of any change of the custodian's address or phone number.
- Terms apply to all persons in the custodian's employment and facility.
- Copies of medical records will be released to a person designated by the patient only with the patient's written request.
- The custodian will comply with state and federal laws governing medical record confidentiality, access, disclosure, and charges for copies of the records.
- There are agreed-upon fees for maintaining the records.
- It contains language that addresses any personal practice decisions made by a custodian (retirement, selling, or moving) to ensure the safety of and continued access to the records by the original physician or physician's personal representative.
If a pediatrician chooses to destroy clinical records after the required period of time, confidentiality must not be compromised. There are record destruction services that guarantee records are properly destroyed without releasing any information.