You can limit your liability if records are lost.
In a letter to this column, a physician voiced concerns about what his liability exposure might be if his patient records were destroyed as a result of a catastrophic event such as fire, flood, or, in the case of electronic records, a major computer malfunction. Well, the short answer is that of all the things you need to worry about, this one shouldn't keep you up at night.
The loss of patients' medical records would surely disrupt your practice and potentially cause significant problems for some patients. However, beyond the business and follow-up issues associated with trying to take care of patients without their medical records, it's unlikely that you'd be held liable for the loss of these files. To make a legitimate claim, a patient would have to first establish that you or someone on your staff negligently caused the event that led to the records' destruction-for example, if an employee snuck a smoke in the records room and accidentally started a fire.
There's no established protocol regarding steps that should be taken to protect paper records. And certainly you're not expected to maintain duplicate copies of all medical records at some off-site location to protect against a catastrophic loss. However, if you have an EHR system, back up your medical records at least daily. Your failure to do so could result in some liability exposure if the records are lost, and a patient suffers an adverse event because they're unavailable.
Can't stop a hurricane
A legal principal known as the "missing evidence rule" stipulates that judges can instruct juries that if a party to a lawsuit fails to produce necessary evidence (e.g., records), and can't adequately explain why it can't be found, the jury can presume that the absent evidence would be damaging to the party's claim. However, if records are lost due to some catastrophic event-especially a weather-related occurrence, such as a hurricane or a wildfire-it's unlikely that the missing evidence rule would be applied.
Your best course of action to protect yourself against a missing records nightmare is to duplicate the charts of any patient who expresses dissatisfaction with your care, or who has a significant adverse outcome. Keep those copies someplace other than your office-in your home, or possibly in your attorney's office-so that they'll be available if the original records are accidentally lost or destroyed, and update versions as necessary.
Take this precaution even if you're not concerned about a catastrophe, to avoid the possibility of records important to the defense of a malpractice claim being lost-or inappropriately altered-in the ordinary course of business. Remember, accurate and thorough records are often your best defense in any medical liability case.
The author is a health law attorney with Adelman, Sheff & Smith in Annapolis, MD, and Washington, DC. He can be reached by e-mail at firstname.lastname@example.org. This department deals with questions on common professional liability issues. We cannot, however, offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please e-mail it to email@example.com. You may also fax your question to us at 201-690-5420, or send it to Malpractice Consult, Medical Economics, 123 Tice Blvd., Woodcliff Lake, NJ 07677-7664.