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. Probably the greatest risk you face from losing patient records is the trouble that might be encountered in defending against a malpractice claim, or even a reimbursement challenge, without the records to show exactly what you did and why.
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