Refer to: Hassard H: Retention of medical records. West J Med(California Section) Mar 1981

Because medical records are essentialto defend against future malpracticeclaims, the statute of limitations andcourt decisions impacting on this stat-ute must be considered before recordsare destroyed. The prudent practi-tioner will retain records in commer-cial "dead storage" or on microfilmindefinitely. In California, minimumtime for retention would be sevenyears after the last date of treatmentor after the patient reached majority,whichever occurs last; even ten years

* after either event presents some ap-preciable risks.

THE WESTERNJournal of Medicin

California Section

Retention

of

Medical

Records

HOWARD HASSARD, ESQ, San Francisco

QUESTIONS OFTEN ARISE as to the length of timephysicians should retain medical records. Recordsshould, of course, be kept as long as they may beuseful in rendering treatment. This includes re-taining records to provide for continuity of careand to answer a patient's questions years after con-clusion of treatment. Routine questions regardingchild immunizations, evidence of a physical con-dition existing before an injury or test results fromprevious years may be anticipated and recordsretained accordingly. Today's scientific advancessuggest that a physician retain records indefinitelyto provide answers to unforeseeable questions. In1980 physicians are receiving requests fromwomen seeking to determine if their mothers weretreated with diethylstilbestrol (DES) in the late1940's. A need for this information could not havebeen anticipated 30 years ago.

Legal considerations also dictate that patients'records be retained in some cases for an indefiniteMr. Hassard is Legal Counsel for the California Medical Asso-

ciation.Reprint requests to: Howard Hassard, Esq, Hassard, Bonning-

ton, Rogers and Huber; 44 Montgomery Street, San Francisco,CA 94104.

THE WESTERN JOURNAL OF MEDICINE-CALIFORNIA EDITION 1

period. This article will review pertinent Cali-fornia statutes and case law affecting medicalrecord retention and offer some practical consid-erations concerning possible future medical mal-practice actions. The term medical records coversall of a patient's records including x-ray films,electrocardiographic tapes, and the like.

California law includes two requirements forretention of medical records: (1) California hos-pitals are required by regulation to retain medicalrecords for seven years following a patient's dis-charge, except for the records of minors whichmust be retained at least one year after a minorpatient has reached 18. years of age and in nocase less than seven years. (2) Physicians andhospitals treating Medi-Cal patients must retainthe patient's records for three years from the datethe last service was rendered. There are no Cali-fornia statutes that specify the period a physicianmust retain private records for patients not cov-ered by the Medi-Cal Act. However, since recordsare essential to defend against future malpracticeclaims, prudent physicians will consider the cur-rent statute of limitations, and recent court de-cisions impacting on this statute, before destroyingany medical records.

Statutes of limitation provide that suit cannotbe brought after a specified period has passed.Simply put, records should be retained until thestatutory period is over, plus an additional periodduring which suit may be served upon any party.Judicially created exceptions to the statutory pro-visions make these calculations difficult.

The statute of limitations in California foractions based on the professional negligence of aphysician requires a plaintiff to bring an actionwithin "three years after the date of injury orone year after the plaintiff discovers, or throughthe use of reasonable diligence should have dis-covered, the injury, whichever first occurs." (Codeof Civil Procedure §340.5.) This three-year periodmay be extended indefinitely should there be anyact of fraud or concealment on the part of thephysician or the leaving of a foreign body in theinjured person. An action must be commenced onbehalf of a minor under six within three yearsof the alleged wrongful act or before his or hereighth birthday, whichever provides a longerperiod. Fraud or collusion between the parentsand the physician will extend the statute. Forprenatal injuries, California law provides for asix-year statute of limitations from the date of

birth. (Civil Code §29.) If the patient has certaindisabilities, such as insanity, all applicable statutesof limitation are extended. (Code of Civil Pro-cedure §352.)

In addition to these exceptions, recent courtdecisions in California have substantially weak-ened the protection of the three-year bar. A 1978appellate decision declared that each case mustturn on its own particular facts for determinationof the date of injury. The court held that thestatute starts to run when "appreciable harm" isfirst manifested. Another case held that the "in-jury" does not occur until the patient suffersphysical injury and learns of its alleged negligentor wrongful cause. Such interpretations render thethree-year statute of limitations almost meaning-less. In a 1978 case the appellate court held thata physician be held liable for failure to warn ofthe dangers of an intrauterine device (IUD) im-planted six years earlier. The statute of limitationsbegan running on the discovery of the harm, sixyears after the implantation. This physician wouldneed to search for records six to seven years oldfor a recorded notation that the patient had beenwarned of the dangers. As this example illustrates,claims can conceivably be filed years after theincident in question.

Records will be needed to defend these claims,even if they are infrequent. Therefore, it wouldbe wise to retain medical records indefinitely. InCalifornia, the absolute minimum would be sevenyears after the last date of treatment or after thepatient reaches majority (whichever occurs last);even ten years after that event presents some ap-preciable risks.

Records should also be retained after a claimfor malpractice has been paid. California lawrequires an uninsured physician or a physician'sprofessional liability insurance carrier to send acomplete report to the Board of Medical QualityAssurance of any settlement or award over $30,-000 for damages for death or personal injurycaused by the physician's professional negligence.Every person named in such report, who isnotified by the board within 60 days of the filingof the report, is required to retain for a period ofthree years from the filing of such report anyrecords as to the matter in question.

Even after a physician's death, patients' medi-cal records should be retained. In California,plaintiffs with suits pending at the time of aphysician's death have four months after first

2 MARCH 1981

publication of Notice to Creditors to file claimswith the estate. (Probate Code §707.) This timemay be extended if the court finds that neitherthe claimant nor his attorney had knowledge ofthe decedent's death at the time prescribed forpresenting the claim. For personal injury claimsnot previously filed claimants must file within oneyear after accrual of the cause of action. (ProbateCode §720.) There is a special provision forsuing the decedent's insurance carrier if the suitis based on a claim for which the decedent wasprotected by liability insurance. (Probate Code§721.) To assist the carrier in defending an actionagainst a deceased physician, it is prudent for theestate to retain the medical records of patientsuntil the three-year statute of limitations has ex-pired. At the time the deceased physician's estateis to be closed, the executor or administratorshould discuss record retention with the liabilityinsurance carrier.When a physician moves from a community or

retires from practice he or she should notify pa-tients on the active list of this intention and en-courage them to find another physician. With thepatient's consent, records may then be transferredto the new physician. The original records, how-ever, should be retained by the retiring or movingphysician to protect against any future malprac-tice claims. A reasonable charge for duplicatingor secretarial services connected with transfer isnot improper.

Medical records to be retained indefinitely maybe placed in "dead storage" in a commercial vanand storage company. To reduce space require-*ments and facilitate the location of records, suchrecords may be microfilmed. Microfilmed recordsare admissible as evidence in court if made in the"regular course of business." If not copied as partof the business routine, the microfilmed recordswill be admissible if a "certification" is attachedto the sealed film container or incorporated in thefilm itself, certifying that the copy is correct andstating the date and name of the person copyingthe records. (Evidence Code § § 1531, 1550, 1551.)

Finally, if records are eventually destroyed,every precaution should be taken to protect theprivileged information contained therein. Shred-ding or burning these documents will insure thatconfidentiality is maintained. Moreover, a reportshould be kept of the date and name of the per-son or organization doing the destruction as wellas a list of the names of the patients whose recordswere destroyed.

ConclusionIt is recommended that a patient's medical

records be retained indefinitely due to malprac-tice considerations, as well as to aid in futuretreatment by the physician or subsequent treatingphysicians. Records may be maintained eco-nomically in commercial "dead storage," or, ifthe physician chooses, kept on microfilm.

THE WESTERN JOURNAL OF MEDICINE-CALIFORNIA EDITION 3