Maintaining the records of an inactive patient is an expense and a chore but there are several reasons why we are required to do so. The primary concern to most of us is the ability to defend against an accusation of malpractice or an inquiry from the Office of Professional Discipline (OPD).  Without records, a claim of malpractice by a former patient or an allegation of professional negligence is virtually indefensible.  In addition, we risk a professional misconduct sanction if we don’t maintain records properly even if there is no allegation of malpractice. Another reason to maintain the records of an inactive patient relates to the requirements of your malpractice policy.  Some policies state the amount of time the insured doctor is expected to maintain his or her records.  Failure to comply with this provision of your malpractice policy may relieve the carrier of the responsibility to defend you.

How Long Should I Maintain My Patient Records

A concern of many colleagues (and the question I get asked most often) is: “How long do I have to maintain the records of my inactive patients?”  Forever is best, but a reasonable compromise is to keep all patient records for ten years from the date you last saw the patient, particularly in a field like ours where we treat children. Maintaining a record forever eliminates the need to calculate any statute of limitations considerations or to have any familiarity with the record-keeping statutes.  If there is an allegation of malpractice or an inquiry by the Office of Professional Discipline, even years after the patient was last seen, records are available. If space is not a consideration keep your records indefinitely, preferably in some systematic way that permits access to even the oldest file. While there is a statute of limitations on a patient’s ability to bring a malpractice action, there is no statute of limitations on the state’s right of OPD to bring a disciplinary action.

If indefinite retention of all patient records is not an option, consider scanning or photographing your paper records and plaster casts into a compressed format prior to discarding the originals.  In the event of a lawsuit, a properly archived duplicate, scan, or computer record will be accepted by the court provided it was archived in a way that assures its authenticity. With the prevalence of paperless offices and all-digital records, the physical space a record requires has become much less of an issue but one concern with computer-archived records is that if the program or system you originally archived the record with is no longer in existence or accessible you might not be able to produce the record. Having patient records stored on 5.25” floppy disks aren’t going to help you access them in a cloud-based data world.

No matter how you chose to archive your patient records, you need to have a backup duplicate stored somewhere else. Even in the event of a disaster, you are not absolved of your obligation to maintain patient records. Superstorm Sandy drove home this concern to many dentists. If your office is destroyed by a flood, fire, or other calamities you are not absolved of the record-keeping requirements, and you won’t get a “pass” if records are requested by a malpractice attorney, insurance company, or disciplinary body. Whether you have physical or virtual records, you have a legal obligation to safeguard and retain them against all perils. That means making sure you can provide copies even in the event of a natural disaster or a computer crash.

In our next issue, I will discuss the New York laws that relate to the statute of limitations for malpractice and how that integrates with record retention. Every healthcare professional should be familiar with the statutes of limitation related to professional negligence in New York State. Knowing the statutes is your best ally in formulating a records-retention protocol.

Some final notes regarding the disposal of inactive patient records:

  • be sure to do so in a way that maintains the confidentiality of the record. You need to shred, incinerate, or crush the records in a way that there can be no breach of protected health information. Simply putting your old records in a black plastic bag and tossing them in a dumpster is not acceptable. There are commercial record-shredding services that will come to your office and dispose of your records in accordance with applicable statutes. If you utilize the services of a record-disposal company, be certain to get a receipt and a manifest showing the records were properly disposed of. That way, in the event your patient files are found blowing down the street in front of your office, you can show that you did everything right in attempting to dispose of them properly.
  • When you decommission an office computer, I-pad, or smartphone be sure to reformat or crush the hard drive to remove any protected health information. Simply deleting those files is often not enough to remove them from the hard drive. If you have patient records on a laptop, make sure the laptop is encrypted and password protected so that in the event you lose the laptop you don’t risk a costly HIPAA violation. As an aside, many office copying machines now use hard drives that can store patient information. A medical office was recently sanctioned and fined for failing to remove patient records from the hard drive of a copying machine they turned in when the lease was up.
  • When you sell your office, make sure the agreement you have with the purchaser requires the purchaser to maintain all of your patient records for any applicable statute of limitations. Your agreement should permit you to have reasonable access to the original records in the event of a lawsuit, administrative action, or insurance investigation against you. The buyer should be required to indemnify you in the event he or she disposed your old records prior to the contractually agreed-upon time period. Just because you sold your practice does not mean you are no longer at risk. You may very well need the records you no longer have custody of.

Handling a Patient Request for Records

Another issue related to patient records is your legal obligation in the event a patient requests a copy of his or her records. You are required to provide a patient with copies of his or her records. You must provide copies within a “reasonable” time, usually construed as 10 -14 days. You should never give a patient, or anyone else for that matter, original records unless specifically instructed to do so by the court. New York State law permits you to charge seventy-five cents a page to duplicate paper copies and a “reasonable” fee to duplicate non-paper records such as film-based radiographs, non-digital photos, or study casts. There is no precise definition of what is reasonable, but the fee must bear a relationship to the actual cost of duplication. Perhaps the easiest solution to duplicating records for a patient is to put everything on a password-protected disk and hand or mail the disc to the patient. Be cautious about e-mailing patient records, however. Unless your transmission is properly encrypted you will have a HIPAA breach. If a patient requests copies, has a treatment balance and refuses to pay you the duplication fee, you are still required to provide copies. You may add the duplication fee to the balance due and pursue your other “remedies at law” but you cannot withhold copies of a patient’s records even if the patient owes you money.

While there is always a risk of not maintaining a patient’s record forever, there is a point where that risk becomes small enough to tolerate.  In order to evaluate the point at which your risk becomes minimal you should thoroughly inform yourself of the laws, rules, and regulations related to record-keeping requirements in New York State.

This information is not intended as a substitute for legal advice. You should familiarize yourself with New York laws and seek legal advice from a local attorney who specializes in such matters.

Eric Ploumis is an attorney, an orthodontist, and an Associate Clinical Professor of Orthodontics at New York University. He limits his legal practice to issues surrounding the practice of dentistry with an emphasis on practice transitions, employment issues, leases, and defense of allegations of professional misconduct before the Office of Professional Discipline.