Moving to EMR and destroying written records: I just got sued

David J. Goldberg, M.D. J.D.Dr. Paper has practiced dermatology for 20 years. Last year, he finally began to implement an EMR system and his staff began to destroy the thousands of paper charts from the last two decades. Unfortunately, his staff shredded multiple records that had not yet been scanned into his new EMR system. Recently, several of his patients requested copies of their records-records that had already been destroyed. One such patient has now threatened to sue Dr. Paper for negligence. He saw the patient only one year ago.  Does he have any liability?

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There are several issues to look at in this regard. One issue is the standard medical malpractice issue that is based on negligence. The analysis of negligence is always based on four distinct elements:

• Duty

• Breach of duty

• Causation

• Damages

Attorneys, expert witness and juries will always ask the same question: In his actions toward his patient, did Dr. Paper perform in accordance with reasonable duty? In most jurisdictions the standard question is: Did he perform his duty like any other reasonable physician? In some jurisdictions, the question is asked somewhat differently: Did the physician perform in a manner that would be expected by a reasonable patient? If Dr. Paper did not do so, he then has breached his duty.

However, breaching his duty will not necessarily cause him to lose a lawsuit (it may, however, be the precipitating factor in the lawsuit being filed). For Dr. Paper to lose the lawsuit, there must be a connection between the breach of duty and damages. That element is known as causation. That is, was the breach the actual cause of the damages?

NEXT: Damages must have an economic value

Damages must have an economic value. In dermatology, misdiagnosis, scars, infection and pigmentary changes may all have economic value. In the end, all four elements in the cause of action in negligence must be proved to the jury for Dr. Paper to lose the lawsuit.

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Just because there are scars, infection, or pigmentary changes does not mean there is also negligence. These may simply be complications which do not necessarily rise to the level of negligence.  Misdiagnosis, on the other hand, if it leads to damages, may lead to a loss of the case based in negligence. Whether there is a breach in duty is often determined by a testifying expert witness. Testimony will be based on the medical literature, norms of the community, and lectures at meetings. 

The second question here is the more interesting one. The medical records have been destroyed and so are no longer available. It goes without saying that we need to keep all records that relate to the care that is provided to our patients, including notes, communications, diagnostic testing results and medication records. The records must be kept for a variety of medical and ethical reasons, but forhow long do we need to keep the records? 

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The first level of regulation is federal. The Medicare Conditions of Participation (which require hospitals to retain records for five years), apply only to facilities. However, Medicare managed-care program providers have the longest retention requirement under CMS regulations and must retain patient records for 10 years.

HIPAA follows the Federal Statute of Limitations for civil penalties and so requires retention of a record for six years from the date of its creation or the date when it last was in effect, whichever is later.

NEXT: State requirements vary significantly

State requirements vary significantly. For example, physicians in New York must keep the records of adult patients for six years after the last visit and the records of minor patients until one year after the child’s 18th birthday. In Colorado, seven years is the adult standard and, for minors, the records should be kept until seven years after the child has reached 18. Texas also uses seven years as the adult standard and requires that the records of minors be kept until they are 21 or for seven years from the last date of treatment, whichever is longer.

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 A physician who is closing her practice entirely (as opposed to one who is selling it, under which terms the incoming physician becomes the custodian of the records so there is no time limit issue) must therefore check with her own state as to its regulations. Needless to say, irrespective of any limiting statutes, do not destroy medical records that relate to a civil, criminal or administrative proceeding if you know that the process is either pending or already ongoing but has not yet been resolved.

The majority of dermatologists have been converting their written medical records to EMR records for a variety of reasons. The 2009 stimulus package allocated billions of dollars to physicians upon implementation of “meaningful use” of EMR.

Dr. Paper has started down this road, but he must be careful that written records are not destroyed before being placed into his EMR system.      

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