HEALTHCARE

CLINICAL MEDICAL RECORDS RETENTION: IN NEED OF CHANGE?

The patchwork of multi-State, U.S. Federal, accreditation, and contractual medical records retention laws, rules and guidelines are anachronistic to the promise of electronic clinical medical records.

It is anticipated that over the next decade many physicians will retire or sell their practices. Those who retain their practice must transition from paper to digital medical records. What records will be retained? Is the destruction of medical records in the best interest of medicine?

State licensing laws and Boards dictate the non-contractual legal periods for retention of medical records, subject to certain Federal laws. These periods tend to be defensive periods, varying by State as do medical malpractice statute of limitations. For adults in New York physicians have a six-year retention period, while New Jersey and Connecticut each have ten. Even within New York, for minors a physician must retain the records until the child is 19, but other health care providers need to retain such records until 22. Medical record retention periods are minimum periods. Physicians do maintain records in excess of these periods, but doing so is not obligatory. Physicians maintain immunizations and other materially relevant tests related to a patient’s ongoing medical condition or treatment consistent with A.M.A. Opinion 7.05.

Depending upon the State, the physician or healthcare facility may not advise the patient that records beyond the minimum period are being destroyed. The records are the property of the physician or hospital. This is particularly true for episodic hospitalizations even if the condition is chronic.

One promise of electronic medical records is to have ready access to readable and horizontally and vertically searchable information that theoretically is less prone to error in interpretation. The larger promise is that complete electronic clinical medical histories could be incorporated into sanitized databases solely for medical research and clinically useable by doctors treating generations in the same blood line. A well known research physician in autoimmune diseases recently confirmed my belief that testing all autoimmune diseases by human leukocyte antigen might be useful in finding relationships amongst all autoimmune diseases and potentially more prevalent diseases. There are very few autoimmune registries so the process would be too expensive conduct. Big medical data, could yield big discoveries. Record retention policies can help or hinder this.

There are privacy and data sharing legal constraints inherent in such extended databases, but this could be obviated by patients opting in during life or as a matter of estate planning with appropriate limitations on use and access.

Most patients likely have no idea that their physician and hospital records are only temporal. Clearly, physicians and healthcare facilities do not want to extend their risk of malpractice litigation or regulatory risk by retaining records almost indefinitely. They do not want the risk of spoiliation of evidence.

From a legal standpoint, medical record retention for the purpose of legal liability or accreditation need not change. What needs to change is the destruction of medical records beyond the relevant State or Federal legal limitation periods and contractual requirements. Since physicians and healthcare facilities would not want the expense or risk of retention beyond this period, their patients or their guardian or legal representative could in lieu of destruction receive such electronic records on a cost free or nominal fee basis. Ownership of the records would then be transferred to or on behalf of the patient. If the physician or healthcare facility has a valid legal right to recover unpaid fees from the patient it could withhold transfer until it is paid. Alternatively, the State or Federal government, through their Department of Health or the NIH, could establish an unclaimed medical records database. All clinical medical records not to be retained by the physician or healthcare facility, or to be received by or on behalf of the patient, would be retained in trust for the patient, subject only to medical research rights by qualified researchers; for reasons of emergency public health; and for qualified physician clinical usage within the patient’s generational genetic bloodline. The records would not be subject to Freedom of Information requests nor directly nor indirectly accessible to insurers, or employers. To cover the cost of digitizing and administering the records a dedicated medical treatment tax could be applied to medical services and laboratory fees.

I welcome your opinion, and suggestions.

Brooks White

Contact: bwcounsel@gmail.com

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