HOW LONG SHOULD I KEEP MY THERAPEUTIC RECORDS?

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Therapists always ask us, "How long must I keep my records."_ Some clinicians believe they should keep their records for 7 years, others think 10 years is ideal._ Many clinicians assume if they are no longer treating their patient, there is no need to keep the file.

 

Often lack of storage space and the cost of storing the records off site are the main reasons mental health professionals decide to discard their "old" charts.

 

There is no statute in Illinois that promulgates for how long records from private physicians or clinicians must be kept._ Hospitals are required to keep patient records for a minimum of ten years and often keep them much longer.

 

It is our recommendation that a mental health practitioner should retain their records FOREVER._ The American Psychiatric Association also suggests that records should be kept indefinitely. The reason and justification for this suggestion is simple; if_ you always have your records you will never have to guess what occurred years ago.  Furthermore, reproduction of your "chart" after a lawsuit is filed may be nearly impossible.  Without a chart, the clinician may be exposed to potentially dire consequences that may not have existed by merely retaining the patient's records.

Therapists often comment that records should be kept long enough to outlast the Statute of Limitations._ Although this seems like sound advice,_ a problem arises when the plaintiff attorney alleges theories that circumvent the Statute of Limitations._ The Statute of Limitations for psychiatric and psychological malpractice actions is two years after the date on which the claimant knew, or through the use of reasonable diligence should have known or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death. 

If a minor is the plaintiff ( under the age of 18 at the time of the treatment) then that lawsuit must be filed within 8 years after the date on which the act or omission occurred, but in no event may the cause of action be brought after the person's 22nd birthday._  

This all seems easy enough, but there exists an exception to the Statute of Limitations:_ If the person entitled to bring an action is, at the time of treatment, under a "legal disability," then the period of limitations does not begin to run until the disability is "removed." 

We have seen many plaintiff attorneys allege that their clients were under a "legal disability" at the time they received the treatment and remain under a disability._ Accordingly, the Statute of Limitation never runs out for these alleged "disabled" patients. 

Last month, one of our clients was sued for alleged malpractice arising out of treatment that occurred in 1989._ That's right, 15 years ago._ In that case, the plaintiff attorney alleges that the patient has been legally disabled since 1989 and also added a theory of "Fraudulent Concealment" and "Equitable Estoppel" in order to circumvent the statute of limitations.  Our client does not have the chart in question.  He felt it was safe to discard it in 1999 since it had been over 10 years since he last treated the patient.  Without the chart, he is unable to recall the significant aspects of his treatment.  He cannot recall the diagnosis, treatment plan, medication regime, any side effects of medications, informed consent issues, his observations, patient's complaints or stressors or dates of treatment.  When he has to give a deposition, you can imagine the scenario:

 

Attorney:  What was your diagnosis?

Clinician:  I don't recall.

Attorney:  What medications did you prescribe?

Clinician:  I don't recall.

Attorney:  Were there any side effects of medications?

Clinician:  I don't recall.

Attorney:  What stressors or issues did the patient have?

Clinician:  I don't recall.

 

If the therapist had kept his chart, he would be able to answer these questions based upon a review of his records.  Without the chart, he comes across as a clinician who lacks a basic understanding of the patient’s treatment history.  Wouldn't it be worth saving this patient's chart, as opposed to facing the cross examination outlined above?  Isn't it worth saving all of your patients' charts?