State Open-Record Laws

Some states have freedom of information laws, called open-record laws , that grant public access to records maintained by state agencies. However, medical records are generally exempt from this statute, so the public cannot obtain such information. In some cases, though, if the private patient’s interest in confidentiality is outweighed by the benefit of disclosure for the public interest, then disclosure is allowed. For example, in the case of Child Protection Group v. Cline, the court allowed personal information about a bus driver’s psychiatric records to be disclosed , or made known, to parents of schoolchildren when there was a concern that he would not be able to drive the school bus safely. (Child Protection Group v. Cline, 350 S.E.2d 541, W. Va. 1986.)

Alcohol and Drug Abuse Patient Records

The Public Health Services Act protects patients who are receiving treatment for drug and alcohol abuse. Any person or program that releases confidential information relating to these patients is subject to criminal fines. Hospitals maintain a patient registry at their switchboard or front desk, but they cannot divulge that a patient with drug or alcohol abuse problems is even a patient at their facility.

An exception to this disclosure of information law would be if the patient should require emergency care that would necessitate divulging the abuse problem.

RETENTION AND STORAGE OF MEDICAL RECORDS

Each state varies on the length of time for which medical records and documents must be kept. It also varies by state depending on whether it is the record of a minor or adult. However, most states require that medical records should be stored for 10 years from the time of the last entry. Most physicians store medical records permanently because malpractice suits can still be filed within two years from the date that the occurrence or alleged malpractice event became known.

Using the statute of limitations as a guide for retaining records, the medical record of a minor would be kept until the patient reaches the age of maturity plus the period of the statute. As an example, in a state where the age of maturity is 21 and the statute of limitations for torts is two years, the retention period for a newborn’s record would be 23 years.

MED TIP

Remember that the statute of limitations can be extended for many reasons. It is always better to err on the side of retaining medical records too long, rather than not long enough. Check your own state to determine the statute of limitations for record keeping.

Due to limited storage space, medical records may have to be destroyed after a period of time has elapsed. State laws should always be checked before destroying any records.

The courts take the requirement to retain records seriously. An Illinois appeals court declared that a patient could sue when a hospital failed to retain her x-rays (Rodgers v. St. Mary’s Hospital, 556 N.E.2d 913, Ill. App. Ct. 1990). In a Florida case, a woman whose husband died during the administration of anesthesia was unable to present expert testimony because her husband’s anesthesiology records were missing. The court ruled that she could sue the hospital because it was the hospital’s duty to make and maintain medical records (Bondu v. Gurvich, 473 So. 2d 1307, Fla. Dist. Ct. App. 1984). Table 9.4 describes time period recommendations for retaining medical records as adopted by the American Health Information Management Association (AHIMA).

In the event that a physician cannot retain patients’ records beyond a 10-year time frame, there are certain considerations for the methods of destruction:

· Maintain careful records relating to when a record can be destroyed.

· Designate a person to be responsible for deciding, based on established policies, what records to keep and what to purge.

· Define which records are kept on-site and which are off-site.

· Maintain a log that details which records have been destroyed, as well as when and how this was done.

· Provide a method for disposal (e.g., shred, pulp, or incinerate) that destroys all information in the record. Some facilities hire a service that handles the destruction of medical records. This service must abide by HIPAA guidelines. (See Chapter 10 for HIPAA.)

Storage

Records of current patients are usually kept within the physician’s office for easy access ( Figure 9.3 ). Older records of former patients do not need to be kept in the office where they will take up valuable space. Physicians often rent storage space. It is important to use a clean, dry warehouse space for storage. If records that are needed in court have been destroyed in a warehouse fire or flood, the court may believe that it was a deliberate attempt by the physician to avoid the truth. Some physicians hire a service to place all their records on microfiche , which results in a space-saving, miniaturized film of the medical record.