February Edition 2021
Inside This Issue
Medical Record Retention By Richard Cahill, JD, Vice President and Associate General Counsel The Doctors Company
T Why Some Americans Are Hesitant to Receive The Covid-19 Vaccine See pg. 10
INDEX Legal Matters....................... pg.3 Oncology Research......... pg.4 Mental Health...................... pg.6 Healthy Heart....................... pg.8
VA Administers 1 Million COVID-19 Doses See pg. 12
he unexpected advent of the COVID-19 pandemic and the subsequent dramatic shift to delivering more medical care via telehealth underscore the importance of complete and accurate charting for maintaining continuity of care and defending claims of professional liability. Accurate charting can also help protect physicians against licensing board complaints and hospital peer review queries, or respond to investigations by governmental compliance agencies. The potential for billing audits by the Centers for Medicare and Medicaid Services (CMS) or commercial third-party payers provides further motivation to create— and store—complete documentation. A number of variables affect the length of time a physician should keep a medical record. Factors include state and federal laws, medical board and association policies, and the type of record (for example, that of an adult patient versus that of a pediatric patient). The following information can guide you in developing a medical record retention policy. Basis for Keeping Medical Records The most important reason for keeping a medical record is to provide information on a patient’s care to other healthcare professionals. Accurately charting an individual’s presenting complaints, signs, and symptoms derived from a careful physical examination, differential diagnoses, and treatment plan help to optimize patient well-being and promote more effective continuity
of care. Patient health records serve a number of other vital functions. For example, billing audits require clear documentation demonstrating medical necessity and the nature and scope of the services provided. Another major rationale is that a well-documented medical record provides support for the physician’s defense in the event of a medical malpractice action. Entries made in the medical record at or near the time of the event are regarded as highly reliable evidence in subsequent judicial procedures. The chart and progress notes—key evidence in a professional liability action—are critical to help refresh the provider’s recollections of events (which might have occurred years earlier) and to establish facts at a time when no conflict or other motivation shaded or otherwise embellished the circumstances at issue. Without the medical record, the physician might not be able to show that the care he or she provided was appropriate and that it met the standard of care. Relying on the practitioner’s testimony of general habit and practice to show that the standard of care was met—without supporting documentation to establish the treatment that was rendered— often fails to convince a jury that the treatment the patient received was
consistent with community standards. Medical records are also important in establishing the quality of care rendered in the event of a medical board or peer review inquiry. Patient complaints are often based on an individual’s mistaken recollection of events, or on a failure to understand the course of treatment or adverse consequences involved in the dispute. With complete charting, frivolous allegations are readily resolved, frequently well before a formal administrative process is even initiated. Federal Law, State Law and Case Law Federal and state laws impose mandatory medical record retention requirements on medical facilities and physician practices. The Medicare Conditions of Participation, for example, require hospitals to retain records for five years (six years for critical access hospitals),1 whereas OSHA requires an employer to retain medical records for 30 years for employees who have been exposed to toxic substances and harmful agents.2 Federal legislation such as HIPAA and HITECH have also added new requirements. HIPAA privacy regulations, for example, require that documents created in compliance with the Privacy Rule, such as policies, procedures, and accountings of see Medical Record ..page 14
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