Record Retention in Anticipation of Litigation: What Medical Providers Need to Know
One of the most confusing issues involving medical malpractice cases is record retention. Whenever a healthcare provider anticipates they might be sued, the law requires that they save all relevant records. However, federal and state laws can also apply to record retention, so many providers are confused about their obligations in this area. Contact Snyder Heitman today if you believe a patient is preparing to sue you. We provide vigorous medical malpractice defense to doctors and other medical providers.
The Scope of Record Preservation
State and federal laws require that a party preserve documents and electronically stored information (ESI) whenever they reasonably anticipate litigation. ESI can include emails, electronic records, or electronic notes. The documents or information must be related to the legal claim.
This duty to preserve documents applies even before a lawsuit is filed. This is one reason why the obligation is confusing. You are not legally obligated to keep files or other information indefinitely. But if you have reason to anticipate litigation, then the duty attaches.
Medical providers like doctors might anticipate litigation whenever they receive credible information of a claim, which could consist of:
- Letter from a patient’s lawyer informing you of injuries and an intent to sue.
- Verbal complaint from a patient that they might sue or seek legal representation
- Patient complaint to a medical board about the care they received.
If you suspect that you made an error, then you should probably seek out legal advice, even if you are unsure of whether the patient will file a claim.
Some of the documents and ESI to preserve include:
- Patient notes and lab results;
- Billing records;
- Scheduling logs;
- Any communication with the patient, including letters, emails, or recorded calls;
- Drafts of communications;
- System activity logs or database activity.
A provider’s duty to preserve is broad. And it is better to be safe than sorry. Failure to preserve information, including ESI, can have dramatic consequences. For example, a court might decide contested issues against you if you failed to preserve relevant evidence. They could even inform the jury to assume certain allegations are true because you deleted information.
Providers also should be mindful of other regulations, including HIPPA, which requires retention of some compliance documents. State laws also come into play. Trying to make sense of all your obligations is difficult, especially for busy medical providers. Reach out to an experienced law firm.
Call Our Office to Speak with an Attorney
Our Greenville medical malpractice defense lawyers help clients develop litigation hold policies and identify any relevant records. We know how to protect our clients’ interests by ensuring they retain records which might be relevant for litigation. Noncompliance carries many risks, including sanctions (such as monetary penalties) or evidentiary presumptions that can lead straight to an unfavorable verdict in court. HIPAA violations can result in monetary penalties or even complaints to the state regulatory board.
Call our law firm to speak with an experienced member of our malpractice team. Our firm represents providers in Spartanburg, Greenville, and Upstate South Carolina.