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					 Advice from                                                     cifically the requirements for retention of a physi-
Legal Counsel                                                    cian's private records for patients not covered by
                                                                 the Medi-Cal Act. Therefore, the remainder of
                                                                 this article shall cover the retention of medical
                                                                 records with an eye toward the possibility of future
                                                                 medical malpractice actions and the statute of
                                                                 limitations.
Refer to: Hassard H: Retention of Medical Records (Advice from
          Legal Counsel). Calif Med 119:76-77, Nov 1973
                                                                    The California Code of Civil Procedure [Section
                                                                 340, Subdivision (3)] formerly provided for a
                                                                 one-year statute of limitations from the date of
                                                                 injury until the filing of a claim. As a result of a
                                                                 series of court decisions, many exceptions were
              Retention of                                       grafted on the one-year statute. For all practical
                                                                 purposes, the statute of limitations was of little aid
            Medical Records                                      or comfort to the defendant physician or hospital.
                                                                 In 1970, the legislature amended to some extent
 HOWARD HASSARD, Esq., San Francisco                             the former law. Section 340.5 of the Code of Civil
Legal Counsel, California Medical Association                    Procedure provides that in an action for injury
                                                                 or death due to the professional negligence of a
DUE TO THE ever increasing space requirement                     hospital or physician, the patient must bring the
for the storage of a patient's medical records,                  action within four years of the "date of injury or
question often arises as to the length of time phy-              one year after the plaintiff discovers, or through
sicians and hospitals should retain such records.                reasonable diligence should have discovered, the
The purpose of this article will be to discuss the               injury, whichever first occurs." This four-year
pertinent California statutes with regard to medi-               period may be extended indefinitely should there
cal record retention requirements as well as some                be any act of fraud or concealment on the part
practical considerations concerning the possibility              of a hospital or physician. The courts have pre-
of future medical malpractice actions. The term                  viously shown a liberal attitude on behalf of the
"medical records" covers all of a patient's records              patient on questions of active fraud or conceal-
including such things as x-ray films, EEG tapes,                 ment. To date, no appellate court has considered
and the like.                                                    a failure to disclose facts upon which an action
   For those physicians and hospitals handling                   could be based as it relates to Section 340.5 of
Medi-Cal patients, the Medi-Cal Act requires that                the Code of Civil Procedure. Any future resolu-
the medical records of patients covered by the                   tion of the question might be influenced by the
Medi-Cal Act be retained for a period of three                   court's liberality in finding for the patient in ques-
years from the date the service was rendered.                    tions of active fraud or concealment.
                                                                    The reader should also be aware that under
   Under the provisions of the Health & Safety                   Section 352 of the Code of Civil Procedure, the
Code, the Department of Health is authorized                     statute of limitations is extended if the patient is
to issue regulations concerning the licensing of                 under certain disabilities, such as minority or in-
hospitals. These regulations, found in Title 17                  sanity. As the new four-year maximum limitation
of the California Administrative Code, require                   has yet to be tested in the appellate courts, it would
that hospitals retain the records of an adult patient            be unwise to rely upon it entirely and it is no
for seven years following the discharge of such a                justification for destroying a patient's medical
patient. In the case of a minor patient (under 18),              records.
hospitals are required to retain the records for                    As a patient's medical records are in many cases
one year after the patient reaches majority but                  the only defense to a malpractice action, it would
never less than seven years. The California Hos-                 be wise to retain such records indefinitely, or at
pital Association has issued detailed recommen-                  least for a minimum seven to ten years after the
dations for retention of hospital records.                       last day of treatment or the patient's reaching ma-
   There are no California statutes that state spe-              jority, whichever last occurs.
   Reprint requests to: Hassard, Bonnington, Rogers & Huber         Should the decision be made to retain medical
Attorneys at Law, 44 Montgomery Street-Suite 3500, San Fran-
cisco, CA 94104.                                                 records indefinitely, the question that naturally

       76     NOVEMBER 1973 * 119 * 5
follows is whether the records must be kept in                      medical record cannot be released without his
their original form or may be microfilmed in order                  consent. The Medical Practice Act (Business &
to reduce space requirements.                                       Professions Code §2379) provides that the will-
   The California Evidence Code permits the use                     ful betraying of a professional secret constitutes
of microfilmed records if made in the "regular                      unprofessional conduct. The most common ex-
course of business." The Code also permits the                      ception to the rule prohibiting disclosure without
admissibility of photographic copied records when                   patient consent arises if the physician is served
the originals have been lost or destroyed. In addi-                 with a subpoena. A subpoena is a court order
tion, the Evidence Code provides an alternative                     requiring the production of documents or the
method should the records not be shown to be                        giving of testimony, and must be obeyed unless
"business records." A "certification" attached to                   the court reconsiders its order. When production
a sealed container holding the film, or incorporated                of medical records or disclosure of information
in the film itself will permit the use in court of                  would be injurious to the patient's health, or
photographic copies.                                                harmful to innocent family members or third
   The net result of the foregoing inquiry is to                    parties, application may be made to the court for
recommend that a patient's medical records be                       a protective order restricting disclosure.
retained indefinitely due to malpractice considera-                    Other exceptions to the general obligation to
tions, as well as the need of the records for further               maintain confidentiality arise from statutory re-
treatment by the physician or subsequent treating                   quirement for the reporting of such conditions as
physician; but in order to substantially reduce                     communicable diseases, injuries caused by crimi-
the enormity of space requirements and facilitate                   nal conduct, diseases characterized by lapses of
the locating of specific records, they be micro-                    consciousness, and the like. In these instances,
filmed for storage purposes.                                        patient consent is not required, and otherwise
                                                                    confidential information must be disclosed.
                                                                       What about the other side of the coin? Must
                                                                    information be provided upon the request of a
                                                                    patient? It is likely that the courts will hold that
Refer to: Willett DE: Medical records-The patient's right to        patients are entitled to the information contained
          information (Advice from Legal Counsel). Calif Med        in their records. The California Supreme Court
          119:77-79, Nov 1973
                                                                    case of Cobbs v. Grant, dealing with informed
                                                                    consent, stresses the patient's "right to know." A
                                                                    patient probably has no legal right to see his own
            Medical Records                                         medical record. The chart itself is maintained for
                                                                    the physician's use, and permitting the patient
The Patient's Right to Information                                  access to his chart does not necessarily enhance
                                                                    his knowledge. It may even be misleading to the
  DAVID E. WILLETT, Esq., San Francisco                             lay person. More importantly, the purpose of any
                                                                    medical record is to protect the patient's health,
QUESTIONS ABOUT a physician's obligation to                         and physicians know that there are circumstances
provide copies of his medical charts or informa-                    in which this primary consideration would be
tion from them come frequently to attorneys who                     violated if the patient were held to have a right
counsel the medical profession. Under the law,                      of access to the chart itself.
medical records belong to the physician. More-                         The Legislature has declared that a patient's
over, there are strong legal and ethical require-                   attorney must be given an opportunity to see and
ments that medical records be kept confidential.                    copy all of the patient's medical records, with
But there are also legal and ethical requirements                   the patient's consent. In those instances where
obliging physicians to provide information from                     the patient or third parties would be hurt by knowl-
medical records, or even copies of the records.                     edge or disclosure of information in the record,
   As a general rule, information in a patient's                    this should be brought to the attention of the
                                                                    attorney. In most cases, attorneys will exercise
  From Hassard, Bonnington, Rogers & Huber, Legal Counsel
for the California Medical Association.
                                                                    great discretion in protecting against such injury,
   Reprint requests to: D. E. Willett, Esq., Hassard, Bonnington,   particularly since the attorney himself may have
Rogers & Huber, 44 Montgomery Street-Suite 3500, San Fran-
cisco, CA 94104.                                                    some legal duty in this regard. Evidence Code

                                                                                  CALIFORNIA MEDICINE               77
                                                                                  The Western Journal of Medicine

				
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