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. ​ 

At a minimum, pediatric medical records should be retained for 10 years or the age of majority plus the applicable state statute of limitations (time to file a lawsuit), whichever is longer. In some states, the statute of limitations does not start until the patient turns 18. So in a state with a two-year statute of limitations, a malpractice case related to newborn care could be filed 20 years after delivery, meaning newborn records need to be kept at least 20 years. Additionally, depending on the circumstances, medical record retention may be dictated by state law, federal regulation or even the Joint Commission. 

If a lawsuit is filed and the medical records have been destroyed, it will be hard to defend the care provided. Therefore, medical records must be kept for at least as long as there is a possibility of a malpractice lawsuit. In fact, many medical liability insurers stipulate how long the physicians they insure should keep patient charts. In addition to state laws, pediatricians should check with their malpractice insurers to make sure their patient records are available as long as the insurance carrier says they need to be.  

As EHRs become more universal, the problem should be alleviated since electronic data storage is relatively inexpensive and accessible. However, those still using paper records are 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 or when pediatricians close their practices. 

Reasons for retaining medical records include: providing patients with their personal information should they wish to access it; protecting the pediatrician in case a legal claim is made in the future; and complying with federal and state regulations. 

Options for Storage of Paper Medical Records   

If you are closing your practice and have paper 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. ​ 

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. 

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 time period for retention.  
  • 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. 
  • Agreed-upon fees for maintaining the records. 
  • Any personal practice decisions made by a custodian (retirement, selling, or moving) are clearly addressed to ensure the safety of and continued access to the records by the original physician, the physician's personal representative or the patient. 

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.  

Disclaimer: This information is general in scope and educational in nature. It is not intended as legal advice. If you require legal advice, contact an attorney.  
 
The recommendations in this publication do not indicate an exclusive course of treatment or serve as a standard of medical care. Variations, taking into account individual circumstances, may be appropriate. This content is for informational purposes only. It is not intended to constitute financial or legal advice. A financial advisor or attorney should be consulted if financial or legal advice is desired. 

Last Updated

08/05/2021

Source

American Academy of Pediatrics