What you need to know about statutes of limitations

By Healthcare Providers Service Organization (HPSO)

Do you remember the details of interactions with every patient you had 2 months ago? What about 1 year ago? The reality is that health care providers cannot rely on memory to recall details that could make the difference in successfully defending themselves against a lawsuit or state licensing board complaint. After all, most of us can’t even recall what we had for dinner 2 nights ago.

 

The importance of not relying on memory to retain key information becomes clear when you consider statutes of limitations, which refer to the maximum amount of time between an incident and when legal action can occur.1 Legal action— medical malpractice lawsuits or complaints to the state licensing board—could occur months or years after you last care for a patient. Fortunately, following best practices for documenting and retaining records will help protect you in these situations.

Why statutes of limitations?
Statutes of limitations specify the amount of time between when an injury occurs and when the injured party can file a valid cause of action in court.1 Once the time limit set by a statute of limitations expires, the injured party is barred from filing a lawsuit related to that injury.2 The intent of limiting this timeframe is to promote fairness. After all, memories fade over time and witnesses could become incapacitated or die, making it difficult for the accused person to mount a reasonable defense.2

 

However, statutes of limitations vary by state and the nature of the offense, and they can be quite specific.2 For example, in Pennsylvania, the statute of limitations for filing a medical malpractice lawsuit is 2 years from the date of the injury, but in California, it is 3 years or 1 year from the date the injured party should have known about the injury, whichever is the earlier date.3, 4

 

Additionally, the time associated with statutes of limitations is typically longer for minors. Most states have statutory provisions that allow individuals to have the same amount of time for commencing legal action, beginning after the minor becomes an adult.2

 

State licensing boards are less likely to have defined statutes of limitations. Although your risk of board action as a result of a complaint filed by a patient may be relatively low, you should still take steps to protect yourself against this type of action, as well as legal action.

Documentation provides protection

As a health care provider, you likely realize the importance of documenting what you do, but it’s easy to forget (or not document completely) when you are caught up in the busy workday. However, not recording key information makes it more difficult for an attorney to defend you in the case of legal action and action taken by a licensing board.

 

Protect yourself by documenting patient interactions, whether they occur in-person, on the phone, or electronically. Use the tips in the “Documentation tips for pharmacists” sidebar, below, to remind yourself of what and how to document. Consider quarterly audits to evaluate whether your documentation meets professional standards and legal requirements, and make corrections to your practice as needed.

Retaining records

Because of statutes of limitations, you could be named in a lawsuit long after your last interaction with a patient. That’s why it’s important to retain records based on state and federal laws and regulations.

 

The Health Insurance Portability and Accountability Act rules require retention of records that contain protected health information for 6 years after the last visit.5 This rule preempts state laws that might require a shorter time. Some experts recommend keeping records as long as 10 years. In the case of minors, experts recommend keeping records until the child reaches the age of majority plus the maximum the length of time your state defines as the statute of limitations.5 

 

You can access information about state and federal requirements related to retention of medical records at www.healthinfolaw.org/topics/60.

 

Shield your practice

Statutes of limitations provide some protection against lawsuits years after you see a patient, but they also provide ample opportunity for lawsuits by individuals who may no longer be a patient. Protect your license, and your livelihood, by documenting completely and retaining records that can provide evidence of your care.

 

Documentation tips for pharmacists6
Follow these tips to ensure that complete documentation—not your memory—protects you in the event of legal action or an investigation undertaken by the state licensing board in response to a complaint from a patient.

  • Document all drugs and prescribed supplements dispensed in the patient’s pharmacy record.
  • In compliance with pharmacy and regulatory requirements, document all discussions with patients, parents/guardians, prescribing practitioners, mentors, managers or other parties, and ensure that this documentation is included in both patient and pharmacy records.
  • Document questions asked of the prescribing practitioner regarding the submitted prescription, and also the resulting response.
  • Document that patients are aware of and able to correctly repeat back to the pharmacist each prescribed drug’s uses, potential side effects, and signs of an allergy or adverse effect.
  • If the patient’s practitioner has prescribed a drug for an off-label use, instruct the patient to discuss the drug’s specific indications and expectations for results with the prescribing practitioner, including information regarding known side effects of the drug and the signs of allergic or adverse reaction.
  • Document all counseling sessions with patients or parents/guardians and ensure that they are able to correctly repeat back instructions, as well as warning signs when they should seek medical attention.
  • Carefully examine and review each medication or preparation with the patient before placing it into the patient’s bag, in order to ensure that the correct medications have been prepared and dispensed. Document this discussion and review, as well as any questions the patient may have regarding a change in the shape or color of a medication, noting how questions were resolved.
  • Document any patient requests for non-childproof packaging, and  require the patient to sign for any non-safety bottle caps dispensed.

References

1. Larson, Aaron. Statute of Limitations by State for Civil Cases. ExpertLaw. https://www.expertlaw.com/library/limitations_by_state/index.html 2017. Accessed January 16, 2018.

2. Spero SJ, Cohen PL. Boundary violations and malpractice litigation. Psychiatric Times. 2008. www.psychiatrictimes.com/articles/boundary-violations-and-malpractice-litigation.

3. Cal. Civ. Proc. Code § 340.5. http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=340.5 Accessed January 16, 2018

4. 42 Pa. Cons. Stat. § 5524(2). http://www.legis.state.pa.us/WU01/LI/LI/CT/PDF/42/42.PDF Accessed January 16, 2018

5. George Washington University, Robert Wood Johnson Foundation. Medical Records Collection, Retention, and Access. Health Information & the Law Project. http://www.healthinfolaw.org/topics/60 Accessed January 16, 2018.

6. CNA, HPSO. 2013 Pharmacist Liability: A Ten-year Analysis. 2013. http://www.hpso.com/Documents/pdfs/Pharmacist_Claim_Report_2013.pdf.