MEDICOLEGAL AFFAIRS
For how long should you keep your clinical records?
Dr. Brown is secretary-treasurer of the Canadian Medical Protective Association.
periods under these acts run from the date of death for 1 year in most jurisdictions (2 years in Alberta and New Brunswick). Thus, depending on the date of death relative to the date on which the time limitation would otherwise expire, fatal accidents acts may serve to prolong limitation periods. There is one other consideration that is relevant to a determination of how long a period must elapse before doctors may feel free of risk of suit. Legal proceedings themselves have their own time lag, and an action may be underway for a significant period without the doctor's learning of it. When an action is commenced, legal documents need not be served for 1 year and indeed may be renewed for additional periods prior to service. Thus, at least an additional 2 years should be added to any calculated legal limitation period in determining the time interval over which medical records may be needed. Finally, in any determination of the time during which records should be kept for defence purposes, it must be remembered it is always open to a patient to undertake an action even though the action may appear to be out of time. The matter is then brought to the court, the arguments for or against extending the limitation period are heard and the issue is decided by that court. In these circumstances, the doctor's medical records may be needed to prepare the defence argument. All of the foregoing is set out in an attempt to summarize the various legal factors that must be considered when recommendations are made to association members about the retention of their medical records. Because of the contingencies to which reference is made, it will be apparent that there can be some measure of uncertainty about limitation periods in most jurisdictions in Canada. Thus, as a general rule, the CMPA recommends to doctormembers that they retain their medical records as long as reasonably possible but arbitrarily proposes absolute minimum periods of retention in certain provinces having regard to all the factors that have been mentioned. The CMPA be-* lieves records should be kept a minimum of 5 years from the date of
last attendance in Newfoundland, Prince Edward Island, New Brunswick and Saskatchewan and for 10 years in all other provinces. Please note that these times are proposed arbitrarily as the minimum time for retaining medical records and are a compromise with what might be regarded as the theoretical ideal. No absolute assurances can be given that suits may not be brought successfully after the times suggested have expired. However, it is felt some compromise must be made, having regard on the one hand to the extent of the risk and, on the other hand, to the problems of cost and inconvenience of storing records for longer periods. It is perhaps worth reminding doctors they should consider retaining records for a much longer period in specific cases where the possibility of legal difficulty might be anticipated in provinces where the so-called "disability" factor (minority, mental incapacity) could serve to prolong limitation periods. Not always easy At the beginning it was indicated that doctors should retain their records or retain control of them for as long as those records might reasonably be expected to be required for defence purposes. However, maintaining the availability of their own records may become difficult and pose problems for doctors in a number of circumstances. Patients move, change doctors and request that information about their treatment be transferred to other physicians, and there is an important obligation on doctors to ensure that this clinical information is indeed transferred. Doctors move, they retire or leave practice for other reasons and, from the clinical standpoint, may have little continuing use for their office records. On the death of a doctor, the estate is left with the responsibility of dealing with records and should accept that responsibility. Unfortunately, there is no single simple solution to the problem of retaining records for the necessary period in all these varying circumstances. Generally speaking, when doctors, on the request of patients,
*-For prescribing information see page 619
must transfer information from their records to other physicians, this should be done either by means of abstracts or summaries or by photocopying, thus allowing retention of the original records. Doctors should be reminded that sometimes a simple telephone call to a new treating doctor will obviate the need for transfer of any documents, but if the original record itself is to be transferred, the doctor receiving it should give an undertaking to keep it for the prescribed time limit and to return it promptly to the original owner if it is required for medicolegal purposes. These general principles are applicable as well to the retention or transfer of records by a doctor's estate. From time to time, more frequently in recent years, it happens that suit alleging malpractice or negligence will be brought against a doctor's estate. In these circumstances, it will be obvious that records may assume an even greater importance than if the doctor were alive to assist in preparing the defence. Thus, doctors' estates are advised they should maintain control over records and that transfer of them to other doctors should be properly arranged. An estate may wish to name a custodian of the records, often though not necessarily another doctor, and this custodian should be prepared to deal with the documents in a responsible fashion. (Recent regulations in Quebec set out specific requirements in this regard, and Quebec doctors should be familiar with them.) Finally, it must be emphasized again that the recommendations made for retaining medical records are somewhat arbitrary; arguments might be made for either shorter or longer periods. However, we at the CMPA think the proposals are reasonable, having regard to all the factors that might be considered. It should be remembered also that limitation provisions in some of the provinces have changed significantly in recent years and further changes may well be made in other provinces at any time. In that event, or even after some years' experience with the limitation amendments recently brought into effect, some of the foregoing proposals too will require amending.E
CMA JOURNAL/SEPTEMBER 8, 1979/VOL. 121
629
For how long should you keep your clinical records?
Dr. Brown is secretary-treasurer of the Canadian Medical Protective Association.
periods under these acts run from the date of death for 1 year in most jurisdictions (2 years in Alberta and New Brunswick). Thus, depending on the date of death relative to the date on which the time limitation would otherwise expire, fatal accidents acts may serve to prolong limitation periods. There is one other consideration that is relevant to a determination of how long a period must elapse before doctors may feel free of risk of suit. Legal proceedings themselves have their own time lag, and an action may be underway for a significant period without the doctor's learning of it. When an action is commenced, legal documents need not be served for 1 year and indeed may be renewed for additional periods prior to service. Thus, at least an additional 2 years should be added to any calculated legal limitation period in determining the time interval over which medical records may be needed. Finally, in any determination of the time during which records should be kept for defence purposes, it must be remembered it is always open to a patient to undertake an action even though the action may appear to be out of time. The matter is then brought to the court, the arguments for or against extending the limitation period are heard and the issue is decided by that court. In these circumstances, the doctor's medical records may be needed to prepare the defence argument. All of the foregoing is set out in an attempt to summarize the various legal factors that must be considered when recommendations are made to association members about the retention of their medical records. Because of the contingencies to which reference is made, it will be apparent that there can be some measure of uncertainty about limitation periods in most jurisdictions in Canada. Thus, as a general rule, the CMPA recommends to doctormembers that they retain their medical records as long as reasonably possible but arbitrarily proposes absolute minimum periods of retention in certain provinces having regard to all the factors that have been mentioned. The CMPA be-* lieves records should be kept a minimum of 5 years from the date of
last attendance in Newfoundland, Prince Edward Island, New Brunswick and Saskatchewan and for 10 years in all other provinces. Please note that these times are proposed arbitrarily as the minimum time for retaining medical records and are a compromise with what might be regarded as the theoretical ideal. No absolute assurances can be given that suits may not be brought successfully after the times suggested have expired. However, it is felt some compromise must be made, having regard on the one hand to the extent of the risk and, on the other hand, to the problems of cost and inconvenience of storing records for longer periods. It is perhaps worth reminding doctors they should consider retaining records for a much longer period in specific cases where the possibility of legal difficulty might be anticipated in provinces where the so-called "disability" factor (minority, mental incapacity) could serve to prolong limitation periods. Not always easy At the beginning it was indicated that doctors should retain their records or retain control of them for as long as those records might reasonably be expected to be required for defence purposes. However, maintaining the availability of their own records may become difficult and pose problems for doctors in a number of circumstances. Patients move, change doctors and request that information about their treatment be transferred to other physicians, and there is an important obligation on doctors to ensure that this clinical information is indeed transferred. Doctors move, they retire or leave practice for other reasons and, from the clinical standpoint, may have little continuing use for their office records. On the death of a doctor, the estate is left with the responsibility of dealing with records and should accept that responsibility. Unfortunately, there is no single simple solution to the problem of retaining records for the necessary period in all these varying circumstances. Generally speaking, when doctors, on the request of patients,
*-For prescribing information see page 619
must transfer information from their records to other physicians, this should be done either by means of abstracts or summaries or by photocopying, thus allowing retention of the original records. Doctors should be reminded that sometimes a simple telephone call to a new treating doctor will obviate the need for transfer of any documents, but if the original record itself is to be transferred, the doctor receiving it should give an undertaking to keep it for the prescribed time limit and to return it promptly to the original owner if it is required for medicolegal purposes. These general principles are applicable as well to the retention or transfer of records by a doctor's estate. From time to time, more frequently in recent years, it happens that suit alleging malpractice or negligence will be brought against a doctor's estate. In these circumstances, it will be obvious that records may assume an even greater importance than if the doctor were alive to assist in preparing the defence. Thus, doctors' estates are advised they should maintain control over records and that transfer of them to other doctors should be properly arranged. An estate may wish to name a custodian of the records, often though not necessarily another doctor, and this custodian should be prepared to deal with the documents in a responsible fashion. (Recent regulations in Quebec set out specific requirements in this regard, and Quebec doctors should be familiar with them.) Finally, it must be emphasized again that the recommendations made for retaining medical records are somewhat arbitrary; arguments might be made for either shorter or longer periods. However, we at the CMPA think the proposals are reasonable, having regard to all the factors that might be considered. It should be remembered also that limitation provisions in some of the provinces have changed significantly in recent years and further changes may well be made in other provinces at any time. In that event, or even after some years' experience with the limitation amendments recently brought into effect, some of the foregoing proposals too will require amending.E
CMA JOURNAL/SEPTEMBER 8, 1979/VOL. 121
629
