Every physician is aware of the need to maintain adequate medical records for each of their patients.  Such records are crucial to providing quality health care by serving as a basis for planning the patient’s care and recording essential medical information concerning the patient’s condition and treatment.  Moreover, the records protect the physician legally by documenting the patient’s changing medical condition and evaluation, as well as actions taken by the primary care and consulting physicians.  Furthermore, the need for adequate medical records is recognized not only by physicians themselves, but also by the federal and state governments, which have passed statutes and rules regulating the content, retention, and accessibility of medical records.

Federal privacy standards to protect patients’ medical records and other health information provided to health plans, doctors, hospitals and other health care providers took effect on April 14, 2003. Developed by the Department of Health and Human Services (HHS), to implement the Health Insurance Portability and Accountability Act of 1996 (HIPAA), those new standards provide patients with access to their medical records and more control over how their personal health information is used and disclosed. They represent a uniform, federal floor of privacy protections for consumers across the country. State laws providing additional protections to consumers are not affected by this new rule.  HHS has produced many materials discussing and explaining the provisions of the privacy standards. These materials are available athttp://www.hhs.gov/ocr/hipaa. Unless expressly stated, the provisions of Florida law discussed below are not preempted by the federal privacy standards.

According to Section 458.331(1)(m), Florida Statutes, a physician may be disciplined for “[f]ailing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered, and reports of consultations and hospitalizations.”  Moreover, Rule 64B8-9.003, Florida Administrative Code, in addition to the above, mandates that the records be legible and contain sufficient information to “identify the patient, support the diagnosis, justify the treatment and document the course and results of treatment accurately…”  Finally, the physician should be aware that failure to keep written medical records could subject the physician to penalties ranging from a mere reprimand to a combination of a two-year suspension, followed by probation and a $5,000 fine. Section 456.057(14), Florida Statutes.

Having created an appropriate record, physicians frequently are unsure of the time period during which they must maintain these files.  While Rule 64B8-10.002, Florida Administrative Code, mandates that a physician retain these records for at least five years, the rule also recognizes that this time frame “may well be less than the length of time necessary for protecting the physician.”  Under the Statute of Limitations and Statute of Repose, a claim of malpractice in certain instances may be brought against a physician up to seven years after “the date the incident giving rise to the incident occurred.”  Section 95.11(4)(b), Florida Statutes.  For this reason, it is recommended that physicians retain medical records for at least seven years.

Admittedly, the storage of seven years’ worth of medical records may be both expensive and burdensome.  Therefore, some physicians have chosen to store patient records electronically for easier storage.  While many courts allow reproductions of medical records to be admitted as evidence, even these courts require that several precautions be taken.  First, the physician must have a written policy explaining which types of records are to be stored electronically and this policy must be applied to all records uniformly.  Secondly, a custodian of the records must be appointed.  Overall, extreme care must be taken prior to instituting any electronic record reproduction/storage system.  Therefore, before instituting any document storage conversion, a physician should seek the input of qualified legal counsel.

Finally, having properly created and preserved a medical record, a physician must ensure the record remains confidential. Section 456.057(5), Florida Statutes.  Nevertheless, the physician must, upon request, furnish the patient or its legal representative with a copy of “all reports and records relating to [the patient’s] examination or treatment…(other than AIDS, mental, and substance abuse records),” although a psychiatrist or psychologist may substitute a report of the examination in lieu of the medical record. Section 456.057(4), Florida Statutes.

If a patient requests a copy of his/her medical records, it is very important that the physician provide the patient with a complete copy of all the records, which would include, at a minimum, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient, even those records obtained from another physician.  Section 456.057(4) and (13), Florida Statutes, Rule 64B8-9.003(3), Florida Administrative Code.  Failure to do so may subject the physician to disciplinary action.

Moreover, a physician must release copies of the medical record to parties authorized by the patient, and the physician must release copies of the record, even if not authorized to do so by the patient, if the records have been subpoenaed for a deposition, evidentiary hearing, or trial. Section 456.057(5), Florida Statutes.

It should be pointed out, however, that HIV/AIDS records, sexually transmissible disease records, alcoholic drug abuse records, and psychiatric and psychotherapeutic records are extremely confidential medical records and are not to be disclosed pursuant to a general release.  The disclosure of these types of records require a written release by the patient identifying the specific records to be released or a court order to the same effect. Even a subpoena signed by an attorney is ineffective to release these super confidential records.  In maintaining a patient’s medical records, it is a good idea to clearly indicate a presence of superconfidential materials to avoid inadvertent disclosure.

Physicians are required to keep a record of all disclosures of information contained in the medical records to third parties, including the purpose of the disclosure.  Physicians must maintain the record of the disclosure in the patient’s medical records.  The party to whom the physician disclosed the information may not disclose the patient’s medical information without the expressed written consent of the patient or the patient’s legal representative. Section 456.057(10), Florida Statutes.

When furnishing such copies, a physician  may charge as follows:

1. For patients and governmental entities, the reasonable costs of reproducing copies of written or typed documents or reports shall be no more than $1 per page for the first 25 pages  and 25 cents for each additional page. Rule 64B8-10.003, Florida Administrative Code.
2. For a workers’ compensation case, a physician may only charge up to .50 per page for the records and the direct cost for x-rays, microfilm, or other non-paper records.  Section 440.13(4)(b), Florida Statutes.
3. For other entities, the reasonable costs of reproducing copies of written or typed documents or reports shall not be more than $1.00 per page.
4. Reasonable costs of reproducing x-rays, and such other special kinds of records shall be the actual costs.  Rule 64B8-10.003, Florida Administrative Code.

While a physician can condition the release of medical records upon payment of the copying costs, the release cannot be conditioned on payment of the physician’s bill for services rendered.  Upon the receipt of a written request, the physician must provide the patient with a copy of his medical records within a reasonable time, regardless of whether or not he has outstanding charges due on his account.

As has been shown above, medical records certainly are subject to a variety of federal and state statutes and regulations, all of which the physician must be aware of in order to avoid potentially drastic state action.  In order to minimize this risk, it is recommended that the physician’s medical record procedures be reviewed for compliance with the forementioned laws.  The physician may wish to enlist the aid of a qualified health care attorney in this endeavor, as the input of informed legal advice may well aid the physician in the development of a medical record program which is workable and in compliance with state mandates.

Source: Florida Medical Association
This article is presented for educational purposes only and should not be taken as a substitute for legal advice, which should be obtained from personal legal counsel.  Nevertheless, the FMA hopes that the information provided here and in its other publications continues to assist physicians in answering many of their most common legal questions allowing them to treat patients, instead of addressing legal concerns.

Florida Healthcare Guide  2015-2016