No notes, no defence is a well-known maxim among medical indemnity insurers.
However, the question of how long to keep patient records can be vexing for doctors, especially those approaching retirement age, says Don Munro, a partner at HWL Ebsworth lawyers.
“In an ideal world, medical records would be kept for the duration of a doctor’s career and not culled until well after retirement or perhaps after death,” he says. But he acknowledges that this is not always practical because of storage constraints and costs.
Each state and territory has its own legislation, but generally inactive records must be retained at least until the patient is 25 years old or for at least seven years from the last consultation or other contact, whichever is longer.
However, the AMA suggests that clinicians retain potentially contentious records until they are absolutely certain they are no longer needed. “There are many reasons patients may want to access their records. One of those may be to sue another party for personal injury…. Before destroying or deleting any file, it would be prudent to contact the patient concerned (if possible) and advise them that you intend to destroy their health record, and give them the chance to retrieve it,” it says.
The method of disposal is important from a patient confidentiality point of view. The AMA says that ideally all medical records will be disposed of by transfer to the patient or the patient’s new medical adviser (with the patient’s consent wherever practicable).
It says “disposal of medical records is the responsibility of a medical practitioner or the personal representative of a deceased medical practitioner”.
If records are to be destroyed, it is important that this is done with due care to ensure that there are no breaches of patient privacy.
The AMA says: “In some states and territories there are certain obligations you should be aware of. Broadly, you should keep a record of the name of the individual to whom the health information related, the period covered by it and the date on which it was deleted or disposed of.”
Click here for a link to the AMA’s Privacy and Health Record Resource Handbook.
This publication is general in nature and is not comprehensive or constitute legal or medical advice. You should seek legal, medical or other professional advice before relying on any content, and practice proper clinical decision making with regard to individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgment or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Tego Insurance Pty Ltd is not responsible to you or anyone else for any loss suffered in connection with the use of this information.
Eric is the CEO of Tego, an insurance agency offering specialist indemnity insurance solutions for the healthcare and life sciences sectors. His qualifications include a bachelor’s degree in business and law, a master’s degree from UNSW in law and management and an MBA from the AGSM.