Shouldn’t records be kept since estates can be sued?
Question: A recent article on file retention (Healthcare Risk Management, July 1997, pp. 77-78) stated that the files of deceased physicians can be shredded immediately because "you can’t sue someone who’s dead." Isn’t that a little hasty? The physician’s estate still can be sued, so it seems you still need to keep the files around for a while.
Answer: You’re right. HRM erred in saying you could discard files of deceased physicians immediately. The truth is that you should keep the files of deceased physicians for the same time period you would keep them if the doctor were still alive, explains Sam Bishop, ARM, CHPA, director of risk management for Promina Northwest Health System in Atlanta.
The statute of limitations for filing a medical malpractice suit applies equally to the deceased physician’s estate, so a lawsuit can arise for years after the doctor’s death. And such lawsuits do occur commonly, Bishop says. While state laws may vary on the particulars of how and when a deceased physician’s estate can be sued for medical malpractice, all states will allow the estate to be sued. Any other arrangement would be grossly unfair to a legitimate plaintiff, who would be unable to recover damages simply because the physician died in the interim.
"Don’t let the doctor’s death figure into your decision about file retention at all," Bishop advises. "Just factor in the other concerns, like the appropriate statute of limitations, and make your decision on that basis."
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