Open Bar: Does New York Law Require Creating and Maintaining a Medical Record for Every Patient?

Yes, New York Law requires both physicians and hospitals to document the care and treatment of patients by maintaining a medical record for every patient. This is as important when a physician is treating a friend or family member as with any other patient. At MLMIC, we have seen cases arise where a physician does a friend or family member a favor by prescribing a medication without a medical record, then faces a medical malpractice action or a complaint with the Office of Professional Medical Conduct. Not only does the physician then have a professional misconduct concern, s/he/they also do not have a medical record to support the defense of that action.

Statutory and Regulatory Minimum Retention Periods

Physicians are required to create and maintain a medical record for each patient the physician evaluates and/or treats. Education Law 6530 (32), 8 N.Y.C.R.R. 29.2 (a)(3). In fact, a physician’s failure to maintain a medical record for each patient that accurately reflects that patient’s evaluation and treatment for at least six (6) years after the last date of treatment constitutes professional misconduct. Id. Obstetrical records and records of minor patients must be retained for at least six (6) years and until one (1) year after the minor patient reaches the age of eighteen (18) years. Id.

Hospitals must maintain an accurate, clear and comprehensive medical record. . . for every person evaluated or treated as an inpatient, ambulatory patient, emergency patient or outpatient of the hospital. 10 N.Y.C.R.R. 405.10. Hospitals are required to retain the medical record in its original or legally reproducible form for at least six (6) years, measured from the date of the patient’s discharge. For minor patients, the medical record must be retained for six (6) years or until three (3) years after the patient turns age eighteen (18), whichever is longer, or at least six (6) years after death. 10 NYCRR 405.10(a)(4).

MLMIC Recommendation for Retention of Medical Records

MLMIC recommends that hospitals, physicians and practices retain patient records for longer than the required six (6) years to protect and defend against medical malpractice actions and healthcare fraud proceedings which may be brought after that six (6) year period. While the statute of limitations for medical malpractice is two- and one-half years (2 and ½ years), the statute is subject to various tolls and exceptions, which have the effect of extending the statute beyond that period. Likewise, the statute of limitations for healthcare fraud offenses may be as long as ten (10) years from the date of last payment under the False Claims Act. 31 U.S.C.A. 3731.

 MLMIC policyholders can reach our healthcare attorneys for questions regarding medical record retention, the statute of limitations or any other healthcare law inquiries by calling (800) 275-6564 Monday-Friday, 8 a.m.-6 p.m. or by email here.

Our 24/7 hotline is also available for urgent matters after hours at (844) 667-5291 or by emailing hotline@tmglawny.com.

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Sources:

1.  Education Law 6530 (32), 8 N.Y.C.R.R. 29.2 (a)(3) 
2. 10 N.Y.C.R.R. 405.10 
3. 10 NYCRR 405.10(a)(4).
4. False Claims Act. 31 U.S.C.A. 3731

This document is for general purposes only and should not be construed as medical or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical or professional obligations, the applicable state or federal laws or other professional questions.