The statute of limitations for medical malpractice in the state where the facility is located will provide a guide to the absolute minimum period that records should be maintained. Depending on the local state laws, adults have from one to four years after the occurrence of an injury to file a claim for medical malpractice.
The main problem here is that states tend to define the term occurrence differently. In some states, it is the date on which the specific act of malpractice occurred, whether the patient knew about the malpractice or not. Other states date the running of the period from the last date on which medical care was rendered to the patient by the defendant health care provider. In states where the running of the statute period of limitations starts from the discovery of the malpractice, it is conceivable that a malpractice suit could be filed 10, 15, 20, or more years after the patient was discharged from the facility. The safest legal course in these states is to retain the medical records until the statute of limitation period has run out after the patient's death. In states where the statute of limitations period runs from the last date that care was rendered to the patient, all records should be kept to the end of the statute period after the patient was last treated at the facility. In states where the statute of limitation period runs from the actual occurrence of the malpractice, it is still best to hold the records through the period of the statute of limitations after the patient was last treated at the facility, because it is impossible to know which treatments will become the subject of litigation.
Records on minors must be maintained for longer periods than the records on adults. The laws vary from state to state, but in many states the statute of limitations period for medical malpractice on a minor does not begin to run until the patient's 18th birthday. In these states, it is clear that the records must be kept at least until the patient's 18th birthday, plus the period of the statute of limitations. In other states, the statute period begins to run at earlier birth dates, from the age of 14, or even the age of 6 or 8. In facilities located in these states, it is necessary that the records be kept for the statute of limitations period beyond the appropriate birthday. Under no circumstances should the records be kept for a period less than the statute of limitations period after the last discharge from the facility.
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