Record keeping and policy requirements

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In July 2018 we considered the impact of GDPR on obtaining medical records. This article continues our analysis of the role medical records in claims and particularly, the requirements of preservation imposed by many commercial insurance policies.

Record keeping requirements

It is normal for policies to require an insured medical practitioner to keep records.  Such a provision makes sense on a number of levels.  The GMC requires doctors to maintain clear, accurate and legible records.  The provision reinforces that obligation, and thus helps doctors avoid regulatory sanction.  Good records are also key to avoiding and defending claims – insisting on good record keeping should, therefore, reduce insurers’ exposure to claims and in turn reduce doctors’ premiums. 

Beyond the general provision, the precise requirements will vary between policies.  Three particular issues arise for consideration.

The right of inspection: Some policies state that all records must be available for inspection by insurers.  In effect, insurers can audit an insured’s records or work.  This can help insurers identify systemic problems and assess their potential exposure to a series of claims.  Conversely, other policies limit insurers’ right of inspection to records relating to claims only.  Such a provision is purely aimed at ensuring that the relevant records are available to defend a claim and no more.  Finally there are policies that take a middle route, requiring clinicians to provide information from records but not the originals. This final option reduces the confidentiality concerns.

The period of retention:  Although the NHS has given general guidance on the retention of records, the precise period depends on the patient.  Some policies include their own time limits, though others are less prescriptive.  In any event, doctors should not assume that compliance with policy time limits will be sufficient to comply with the NHS guidance and vice versa.  In general, it is wise to retain all medical records for as long as possible. 

Cover for lost records: Some policies will also provide cover for lost documents or damage to documents.  Medical records are sensitive personal data for GDPR purposes and their loss can attract fines from the Information Commissioner.  Such clauses often have various features including:

  • Cover being limited to costs only, and to a much lower sum than the overall policy limit. 
  • Cover bring provided for replacing records (if possible).
  • Requirements placed on the insured in respect of document storage, back-up and retention.  These can cause their own difficulties where documents are stored by a third party hospital or clinic.

Breaching the requirements

Importantly policies will also vary as to the significance placed on the retention of records.  Such clauses can be a condition precedent, condition or warranty. Each will have different potential ramifications and could, in certain circumstances, have the effect of allowing cover to be avoided.

That is significant given the potential ease with which the requirements can be breached. These clauses are normally widely drafted.  For instance, it is not enough for records to be kept:  those records must be clear, or comprehensive, or accurate, or all of the above.  Further, they are usually to be kept in respect of all medical services provided, a very wide requirement. 

In our experience insurers are usually reluctant to argue technical coverage points about whether an insured’s records are of an adequate standard.  Breach of such requirements are open to debate and if a claim has arisen all parties are likely to want to concentrate their efforts on fighting or resolving the claim. 

One issue that is attracting more attention however is the question of consent. The need for a properly signed and completed consent form is, post-Montgomery, obvious.  Its absence is likely to lead to a claim that the patient did not give informed consent, a claim that is difficult to defend (at least on breach).  It follows that the frequent absence of such forms may be an underwriting concern for insurers. 

The difficulties of keeping records for all treatment will be obvious.  Some treatment is so routine that a detailed note will not seem necessary.  Some interactions with patients will be unexpected.  To adapt an example from a recent case, what if a patient visits their operating surgeon unannounced at the end of a surgery and is seen as a matter of courtesy.  The records are not available, and the patient gives the consultant no cause for concern.  Is the absence of a note in those circumstances a breach of the policy terms?  

Further, doctors (and, indeed, all professionals) are conscious of the balance involved in maintaining full written records.  On the one hand, treating patient A adequately involves keeping a proper record of care that is a given.  On the other hand, time spent writing-up patient A’s notes is time not spent treating patient B, or C, or D.  Medical records are primarily kept in order to benefit patients, not protect doctors or please lawyers (though they are useful for those purposes too).  Doctors have considerable expertise but limited time:  sometimes, writing up records is not the best use of that time.  That said, the danger of busy people taking shortcuts is real. 

Conclusion

Good record keeping is common sense for doctors, patients and insurers.  Policy requirements around record keeping can be important in reinforcing good medical practice.  The precise policy requirements should, however, be checked carefully by doctors, because there is no standard wording on the market that applies in all circumstances. 

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