Document Retention Plans for Health Care Practitioners
Courts typically expect companies to retain hard data and electronic information only as long as necessary and practical for business purposes. For health care practitioners, the various statutes of limitations for claims also need to be factored into their document retention policy. In any event, if threatened with a claim, you should place a “litigation hold” on all relevant document destruction.
We have reviewed pertinent Iowa and federal law regarding document retention programs for Iowa health care practitioners. Set out below are the detailed results of our research.
I. IOWA LAW
According to the Iowa Code § 614.1(9)(a), the statute of limitations for a medical malpractice action is two years after the date on which the claimant knew, or should have known of the existence of the injury or death, whichever of the dates occurs first, for which the claimant is suing. The code further states that no action may be brought more than six years after the date on which occurred the act or omission in question unless a foreign object unintentionally left in the body caused the injury or death. There is no explicit limitation for such a breach of care; thus, such a claim can be made at any time within two years from its discovery by the patient.
Iowa Code § 614.1(9)(b) states that if the action is brought on the behalf of a minor who was under eight years of age when the act or omission occurred, it may be commenced no later than the minor’s tenth birthday. If the injury was to a newborn child, the statute of limitations would run ten years.
The Iowa Administrative Code § 13.7(8) states that a physician must retain all medical records for at least seven years from the last date of service for each patient, except as otherwise required by law, and goes on to provide that the physician must retain all medical records of minor patients for a period consistent with Iowa Code § 614.9. That chapter provides that “[i]f the person having a cause of action dies within one year next previous to the expiration of the limitation above provided for, such limitation shall not apply until one year after such death.” Therefore, this provision, which actually applies to both adults and minors, indicates that if the claimant dies a day before the statute of limitations would have otherwise run, it can be extended for one more year.
Additionally, the continuous treatment doctrine, a product of the common law which has been neither adopted nor rejected by the Iowa Supreme Court, can toll the statute of limitations until treatment ceases if the plaintiff was injured by the treating physician and continued to see that doctor for the same injury, not realizing that the treating physician was the cause of the injury. However, if the plaintiff was under inquiry notice of his or her injury, (a situation which would prompt a reasonable person to investigate the cause) then the continuous treatment doctrine would not apply to toll the statute of limitations.
II. FEDERAL LAW
In order to thoroughly protect oneself, a health care practitioner must not only comply with state law, but also abide by all applicable federal rules. In federal court, the statute of limitations for a medical malpractice claim will not prohibit a plaintiff from bringing a medical malpractice action if such plaintiff is “blameless[ly] ignoran[t] of his injury.” Urie v. Thompson, 337 U.S. 163 (1949). In fact, “the statute of limitations does not begin to run until [the plaintiff] has knowledge of his injury.” Id. Because there are situations in which a patient may not uncover the source of an injury until years after being treated, it is possible that a physician would be unable to avoid litigation based on the statute of limitations and would therefore need all documentation relating to the treatment provided in order to defend the claim.
III. INTERNAL REVENUE SERVICE
The Internal Revenue Service has published guidelines to assist businesses with document retention programs. According to those guidelines, all employment tax records should be kept for at least four years after the date that the tax becomes due or is paid, whichever is later. Claims filed with the IRS for bad debt deductions require that records be maintained for seven years. Records should be kept for three years from the date you filed your original return or two years from the date you paid the tax, whichever is later for claims filed for credits or refunds after filing the return. If you ever fail to file a return, or file a fraudulent return, you should keep your records indefinitely. If you fail to report income that comprised over 25% of the gross income shown on the return, your records should be kept for six years.
Other federal statutes apply to document retention as well. HIPPA requires that policies and procedures implemented to protect patient information be retained in writing for six years from the date of creation or the date when last in effect, whichever is later.
The Iowa Medical Society defers to the AMA on document retention. The American Medical Association guidelines on document retention indicate that records of any patient covered by Medicare or Medicaid must be kept for a minimum of five years from discharge. The AMA further states that medical ethics plays a role in document retention and that the primary consideration for the question of what documents to retain is best answered by asking yourself whether or not the information would be of value to you if you were seeing the patient for the first time.
VII. PROFESSIONAL LIABILITY CARRIER
As an overall cautionary note, you should consult your medical liability insurer, as it may have specific guidelines regarding document retention programs.
Both Iowa and federal law must be considered and followed with the creation of a successful document retention program. Under Iowa law, a physician must retain documentation of medical care provided to a child under the age of eight years until that child’s eleventh birthday or for a period of seven years from the last date of service, whichever is longer. For adult patients, a physician must retain documentation of medical care provided for at least seven years from the last date of service.
In general, the law’s primary focus is on providing people with remedies for damages caused by the act or omission of another, in some rare cases regardless of how long ago such act or omission occurred. We believe that a seven year and forty-five day time period from the last date of service of an adult patient to be reasonable and sufficient, and would not violate any law or ethical rule. For a child under eight, we recommend the records be retained until that child’s eleventh birthday, or for a period of seven years and forty-five days from the last date of service.