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Q: How long do medical records, X-rays, fetal monitoring strips, etc. need to be retained?

A:

The Massachusetts Board of Registration in Medicine (BRM) requires maintenance of physician office (patient) records for seven years from the last patient encounter. If a patient is a minor on the date of the last visit, then the physician must maintain the pediatric patient’s records for a minimum period of either seven years from that date, or until the patient reaches the age of 18, whichever is the longer retention period. Interpretations of “the last patient encounter” range from the patient’s last office visit, to the most recent time he or she gave your name as her/his physician.

 

Records of pediatric and obstetric patients, or those patients who encountered some difficulty during treatment, should be kept for a longer period. Also, if you continue to treat some members of a family, but stopped seeing others, you should retain records for all family members.

 

Patients may expect their records to be kept “forever.” Although you are not under any legal obligation to do so, you may wish to contact patients you have not seen in seven years and ask if they want you to maintain their records or transfer them to another physician.

 

When a physician dies, BRM regulations require that his or her estate must retain patient records for a minimum of seven years or until a child patient reaches the age of nine. The successor of a physician who retires is under the same obligation. As a matter of courtesy, patients should be informed by the estate or the successor of the change that has occurred and that they (patients) can obtain their records or have them transferred to a new physician.

 

Because institutions providing different aspects of health care may be regulated by different agencies, the legal requirements for retention of records may vary. This changes from state to state as well. In Massachusetts, most institutions and clinics (including staff-model HMOs) must retain medical records for 30 years after the discharge or final treatment of the particular patient.

 

Radiological films, scans, other image records, raw psychological testing data, electronic fetal monitoring tracings, EEG tracings, electrocardiography tracings, and the like, are not considered legal medical records, but must be retained for at least five years from the date of the service. A signed report of the findings based on the data must be maintained in the permanent medical record, and any sample tracings generated as part of the actual report itself must continue to be maintained.

This five-year period for test materials is a minimum, and should be evaluated in the context of possible patient care needs for certain disease entities or patient age groups. When one contemplates the possibility of “look-back” needs, an interim retention period of at least 10 years seems prudent.

Q: Do I need to document all normal and abnormal findings from an examination?

A:

No.

However, you should always document "pertinent negatives." Because memory does not serve as well as the printed word, you should list all negative findings that are associated with any of the processes in your working differential diagnosis.

Q: What should be stated or written if the standard of previous care is questioned?

A:

Medical records often reflect differences of opinion and inconsistencies among the patient's health care team. Outright oral or written criticism of previous health care contributes nothing to the patient's needs and could lead to a malpractice claim, even when no negligence occurred. Remarks or record entries critical of prior care are a frequent reason patients consider litigation.

 

Since all pertinent facts about prior care are rarely available, caution is advised in making judgments and comments.

Patients may take casual remarks critical of prior caregivers seriously, possibly destroying those relationships. Basing an opinion on a patient's report of prior circumstances may be unfair since symptoms and findings change over time and the patient's perceptions and recollections may be inaccurately reported. If, after you have considered the complete information, you judged prior care to have been flawed, summarize the clinical events with the patient and dispassionately answer his or her questions.

 

One of the most valuable practice habits involves accurately and objectively documenting and stating the patient's condition at the time you assume care. This, combined with a thorough review of prior care treatment records, should "keep the record straight" without pointing fingers or blaming others should prior care actually be problematic.

Q: What should I do if a patient requests that information be withheld from the medical record?

A:

Information necessary for providing proper care of the patient should always be documented in the record. For example, an HIV-positive status is clinically relevant data and should be documented for optimal care to be provided. Care may be compromised by incomplete medical information, such as known conditions or test results, to the extent that diagnoses may be missed and useful treatments delayed. In addition, hiding information from health or life insurance investigators could be deemed as abetting an act of fraud. On the other hand, omitting data that has no bearing on the patient's current care or condition, such as social history and history of distant past substance abuse, may be appropriate.

 

When faced with a patient who asks you to not record important data, stressing the clinical importance of recording the sensitive information is the first and most effective solution. If the patient still objects, the conflict may pit the patient's interests against your own; termination of the care relationship may be necessary.

Q: Do I need patient consent for releasing medical records to a third party?

A:

Yes, No, and Maybe.

 

As outlined below, the requirement for the patient's permission to release information varies depending on what's being shared and with whom. Stricter regulations that may go into effect after this web posting are likely to further restrict unauthorized release, including some circumstances that currently do not require written permission.

 

When Release DOES Require Specific Written Consent

The following information cannot be released without the specific written consent of the patient, or upon a specific court order.

Communications with:
  • Social workers
  • Psychotherapists or psychologists
  • Marriage/family rehabilitation/mental health counselors
  • Domestic violence victims
  • Sexual assault victims
Information concerning:
  • Drug treatment
  • Alcohol treatment
  • Blood alcohol test results
  • Federally assisted drug/alcohol abuse treatment programs
  • Venereal disease records
  • AIDS/HIV records

When Release DOES NOT Require Specific Written Consent

Health Benefit Providers

By enrolling in or accepting coverage by health benefit programs (Medicare, Medicaid, Blue Cross/Blue Shield, commercial insurers, HMOs, PPOs, etc.) patients grant those third parties access to the information necessary to process claims and to determine coverage and eligibility for benefits. Additional patient consent is not required for release of the necessary information.

 

Mandatory Reporting Requirements

Physicians are required to report certain patient conditions to specified state and local health officials. (See "What patient conditions must I report?".) The patient's consent is not needed:

 

Other
  • Under Massachusetts law, the medical records of hospital/clinic patients may be released without patient consent when:
  • Information is being provided to the Commissioner of Public Health
  • Upon proper judicial order
  • Upon being served with a subpoena when the patient is a named party in the case caption, and release is to a court or place of hearing

In general, the statutory authorizations governing hospitals apply to physicians in medical group practices and individual providers.

Q: What should I do with medical records from my practice when I retire?

A:

You must make provisions for former patients and subsequent providers to have access to the information contained in your medical records. If you are in a practice situation where the medical records are the property of a corporate entity, responsibility for maintaining these records and providing subsequent access may be assumed by that entity. If you are a solo practitioner, or dissolving a partnership or small group practice, responsibility for some or all of the records may fall to you. This responsibility includes not only deciding what medical records to retain, but also coordinating arrangements for safety, storage, and access on a timely basis. Storing records is space consuming, and space saving methods such as microfilming or electronic capture are expensive. No matter what storage choice is made, consider future access to the data.

 

How long medical records must be retained after closure of a practice depends on state law. Massachusetts requires a retiring physician to retain medical records for a minimum of seven years, or until a child patient reaches the age of nine. The physician must furnish the Board of Registration in Medicine (BRM) with a written statement agreeing to provide access to medical records for the required period. Keep in mind that the retention period is based on the date of the letter of retirement to the BRM, not the date of the last patient encounter (as required for active physicians).

Q: What are the risks surrounding electronic communication of medical records?

A:

The same levels of physician and staff responsibility for patient confidentiality and protection apply to electronic records as apply to a paper record:

  • All patient information is sensitive
  • Every patient needs protection
  • Access patient information on a need-to-know basis only
  • Systematic tracking of every entry, look-up, and printing of patient information using unique and confidential signature computer keys (or passwords) is advocated as the best safeguard. Ideally, patients should be able to find out who accessed their record and why

While e-mail has become an efficient way to impart patient information, clinicians must consider any patient-specific e-mail messages to be part of the medical record.


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