Medical Records - Benefit or Detriment?

By Joseph Taraska, Esquire

How often have you heard a peer claim that he is a physician who practices medicine and has little time for the clerical tasks of recording it? There may have been an age when such an attitude was harmless, but that time no longer exists. In this age, the proper preparation, maintenance and dissemination of medical records can be of great benefit to the careful practitioner. Unfortunately, for those less diligent, the result can be as great a detriment.

This article outlines the legal obligations a physician has to prepare and maintain records, the pitfalls that can be encountered and the proper method of disseminating these records.

The Florida Medical Practice Act provides that a physician may suffer a loss of his license for failing to keep written medical records which justify the course of treatment including his­tories, examination results and test results. In addition, Florida courts have recently recognized ,a civil cause of action for failure to maintain medical records. These cases have involved hospitals but the reasoning is applicable to physicians as well. They held that where the health care facility failed to maintain an appropriate med­ical record so that the plaintiff was unable to prove her case of malprac­tice, &he had a cause of action against that facility for the negligent failure to maintain the record. The courts also noted that, if it were found that the facility had intentionally or willfully destroyed the record, a finding of medical malpractice would be entered against them on the plaintiff s underly­ing civil action. If it were determined that the hospital was merely negligent as opposed to willful in its failure to maintain the record then a presumption of malpractice would arise against them.

Once a record has been created, one is often faced with the task of making a correction. The worst way to attempt corrections is to obliterate the original so that it is impossible to determine the orginial entry. This raises a red flag to ajury and provides an attorney the opportunity to argue a Machiavellian intent on the part of the physician. Several year later, when standing in a courtroom, it may be impossible for you to recall what was actually entered in that record and impossible for your attorney to defend you on the entry. The proper way to make such a correction is to simply draw one line through the original entry so that it can still be read; then enter the correc­tion, initial and date the matter. Juries understand the need to correct written material; and, if it can be demonstrated that a reasonable method was utilized so that their curiosity is satisfied, the issue will not be damaging in the courtroom. One caveat is that even these corrections should not be made once a claim is initiated. At that point the record should be preserved in its original form for purposes of litigation.

The question of fraudulent alteration of medical records has been addressed in the new Medical Malpractice Reform Act. As noted in an earlier column, this went into effect on October 1, 1985. With regard to hospital records, the Act provides that any person who fraudulently alters, defaces or falsifies any such record, or causes or procures any of these offenses is guilty of a second degree misdemeanor. This is in addition to any penalty imposed by the Department of Professional Regulation.

The question as to how long these records should be maintained is subject to some dispute. Obviously, physicians should maintain the record for as long as is required to render medical care and attention to the patient for whatever malady he suffers. These records should also be maintained for a sufficient period of time to provide an adequate defense to the physician if a claim is ever made. The statute of limitations which provides the time within which actions must be brought is subject to considerable interpretation. The courts have recently expanded it to the point where one wonders if it is a defense at all. It does provide, however, that actions should be brought within two years from the time a patient knew, or should have known, with the exercise of reason able caution that a cause of action existed. This is extended to a maximum of four years unless the physician has fraudulently withheld information from the patient concerning the cause of action. In that event, the maximum is seven years. As noted, there are exceptional circumstances which may extend this time. As a result, to be safe, a physician should maintain these records for at least seven years from the time he last treated the patient

If a physician should die, there are specific statutes and regulations which provide minimum requirements for the manner in which these records may be disseminated. They must be maintained by the survivor or personal representative of the physician for at least one year from the time of his death. The Florida Administrative Code provides that within one month of the death of the physician, the survivor or representative, must publish in the newspaper of greatest circulation the fact of the death of the physician and the fact that the records are available at a certain location for retrieval by his patients. Ten months after the death of the physician, notice must be published for four consecutive weeks in the newspaper of greatest circulation that the records will be destroyed within one month of the last notice unless retrieved Once the twelve months have run, the records may legally be disposed of. However, before destroying the records, the representative of the estate should consult an attorney to insure the time is past for bringing claims against the estate.

Interestingly, Florida Statutes and the Administrative Code are silent as to the length of time records must be kept by a physician who is retiring, leaving the area, or otherwise terminating his active practice. As noted earlier, Florida Statutes do require that physicians maintain records on patients. This has been interpreted by the Department of Pro­fessional Regulation to mean that they must be maintained for "a reasonable period of time" without specific guidelines as to what constitutes reasonable. It would seem that the physician should maintain such records for at least the seven year period of time discussed with regard to the statute of limitations. If practical, the physician should attempt to notify his patients at the time of his termination of practice to allow them the opportunity to retrieve the records. If this is not possible, he should at least attempt publication such as that required for the death of a physician.

The primary purpose of your record is obviously to assist you in providing care to the patient. If diligently maintained, it will serve you in this regard and, additionally, protect you in the event of a claim.