Good Reasons to Retain Records; Consolidating Malpractice Policies

Q. I recently attended a seminar in which the speakers advocated retaining medical records indefinitely. I didn't think that a patient was able to sue me for malpractice after the statute of limitations has passed. Thus, is it really necessary to retain my records beyond my state's statute of limitations for malpractice actions?

A. Statute of limitation laws establish the period during which specific types of legal actions, such as malpractice actions, may be brought against you. Unfortunately, it is risky to rely solely on your state's statute of limitations period when determining how long to retain your medical records, for at least the following reasons:

The statute of limitations is not a bar to a suit's being filed. Rather, the statute of limitations is an “affirmative defense”—it does not preclude the suit from being filed, even if the statute of limitations has passed. In fact, the statute of limitations is only relevant after a suit has been filed and only if raised as a defense by the defendant physician. Moreover, even if raised as a defense, the defendant physician may or may not be successful in having the case dismissed.

There can be many exceptions to these statutes, so that depending on the nature and wording of a complaint, an action may be brought against you even though it is not brought within the limitation periods. For example, there are exceptions that allow for “tolling” (extending) the statute of limitations when the patient is a minor or suffers under some other legal disability or incompetence.

There is no statute of limitations for certain types of actions that may be filed against you. Your state's statute of limitations may not limit the time for initiating litigation resulting from allegations involving fraud, conspiracy, or criminal acts, for example. Also, these laws may not be applicable to allegations involving federal laws, rules, and regulations (for example, Medicare billing complaints). Finally, statutes of limitation do not apply to disciplinary actions by licensing/medical boards or to ethics proceedings—professional complaints may be made against you at any time.

The lesson to remember is that in a legal proceeding against you, the record is the primary means of supporting and defending the care that was given.

Q. I have incorporated my psychiatric practice, and in addition to myself, there are five psychiatrists on staff. Three are independent contractors, and two are employees. I also employ two social workers. Currently we are covered under various individual malpractice insurance policies. Is it possible to consolidate all of our insurance needs under one policy and still protect both the interests of the individual and also the corporation?

A. Yes. The Psychiatrists' Program, the APA-endorsed Psychiatrists' Professional Liability Insurance Program, offers professional liability insurance for behavioral health care professionals practicing in a group setting. Group members, including psychiatrists, psychologists, social workers, and independent contractors, are covered under one policy with either separate limits for each provider or one shared limit for the corporation. This type of policy helps to streamline administrative duties and allows a greater efficacy of policy management.

The many benefits and features offered through the Program for individual coverage are also available for group coverage, including discounts for part-time practice, early career psychiatrists, and risk management education. Furthermore, group participants have access to numerous risk management services, including the Program's toll-free Risk Management Consultation Service, complimentary admission to mental health-specific risk management seminars, and subscription to a quarterly risk management newsletter.

More information about obtaining group liability coverage is available by contacting PRMS.

This column is provided by PRMS, manager of the Psychiatrists' Program, for the benefit of members. More information about the Program is available by visiting its Web site at<www.psychprogram.com>; calling (800) 245-3333, ext. 389; or sending an e-mail to [email protected].▪