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MEDICAL RECORDS: PRESERVATION AND MATTERS OF EVIDENCE

By P S Ranjan & Co.
Advocates & Solicitors
Malaysia

Introduction
  1. Medical records may need to be preserved for a variety of reasons, medical, legal or administrative. There may be a medical reason for continuing to keep the records but no legal reason for doing so. Conversely, there may be a legal reason for continuing to keep the records but no medical reason for doing so. It may not be enough to preserve medical records. The process of the law may require that further the makers of the documents, if available, be called to give evidence in court so as to assist in the administration of justice.
Medical Reasons
  1. The medical records must be kept for as long as they are necessary for the treatment and management of cases.
  2. Medical records serve as an aid to memory in the management of cases by health care professionals. There may be other reasons, e.g. for conveying information, advice and instructions to others involved in managing the case of a patient, epidemiological studies, research, teaching, etc.
Legal Reasons
  1. The medical records must be kept for as long as there are legal reasons for doing so.
  2. So, if the medical records are necessary for the purpose of a court case, the records must be kept until the case is concluded, which process may take many years.
  3. A doctor may be in court as a litigant or a witness. Even as a witness in a case which is heard many years after the events in question, the doctor may need to refer to the medical records.
  4. For a long time, the law generally did not say in what form or with what content medical records must be kept. Guiding non-legal principles like good medical practice and administrative reasons must be kept in mind when deciding whether or not to preserve medical records. However, now the Private Healthcare Facilities and Services Act 1998 and the subsidiary legislation made under it make some provision in that regard.
Limitation Periods
  1. There are limitation periods for many types of civil cases. There are exceptions too.
  2. There is no limitation period for criminal, disciplinary or matrimonial cases. So, if such proceedings are expected, the relevant records must be kept until such time as it may reasonably be thought that no proceedings would arise.
Private Hospitals and Doctors

 

West Malaysia
  1. In West Malaysia, in the case of medical negligence claims against private hospitals and doctors in private practice, the usual limitation period, as provided in the Limitation Act 1953, is six years running from the date on which the right to sue arises, which is usually no later than the date of the occurrence of the injury complained of.
East Malaysia
  1. In East Malaysia, the Limitation Act does not apply. There is another statute regarding limitation applying in each Sabah and Sarawak.
  2. In East Malaysia, in regard to private hospitals and doctors in private practice, the limitation period is usually three to six years, running from the date on which the right to sue arises.
  3. In the case of a breach of a written contract, the limitation period is six years, running from the date of the breach of contract. In the case of a breach of an oral contract, the limitation period is three years. In the case of a tort, the limitation period is three years, running from the date of the occurrence of the injury arising from the tort.
  4. The law of limitation in East Malaysia is quite complex, much more than in West Malaysia.
Government and Public University Hospitals
  1. The Public Authorities Protection Act 1948 applies to the whole country. It provides that the limitation period for claims against a public authority, which includes the Government of Malaysia or of a state, is thirty-six months running from the date of the act, neglect or default complained of or, in the case of continuance of injury or damage, within thirty-six months next after the ceasing thereof.
  2. By virtue of section 24B of the Universities and University Colleges Act 1971, that limitation period would apply to public universities established under that Act.
Public Officers
  1. The limitation period of thirty-six months also applies to doctors sued in respect of incidents which occurred while they were working for the Government or a public university hospital established under the Act of 1971.
Fatal Accidents
  1. Under section 7 of the Civil Law Act 1956, in the case of a fatal accident, which is caused by a wrongful act, neglect or default, whether in East Malaysia or West Malaysia, a claim may be made by members of the family of a deceased person and any person with disability who was under the care of the deceased person. Such a claim is often loosely described as a “dependency claim”. It must be brought within three years of the date of the death of the deceased person, where the death was caused by the alleged wrong.
  2. Similarly, a claim may also be brought for the benefit of the estate of the deceased person (as distinguished from a dependant of the deceased person), as provided under section 8 of the Act. A six-year limitation period running from the date of the death of the deceased person shall apply.
  3. It should be remembered that the three-year period does not apply where a person’s death is not caused by a wrongful act, neglect or default of the person intended to be sued.
  4. For example, if a person had suffered the loss of a leg in an accident in a private hospital and dies, not because of the accident but because of, say, cancer of the lungs, the accident would not be a fatal accident which is subject to the three-year limitation period. The limitation period of six years will run from the date of the accident, not the date of the death.
Service of Process
  1. Process of the Court may be served within a period of six months of it having been issued or, upon application to the Court, within a further six-month period.
  2. In an appropriate case (but rarely), time for service may be extended even further. Extension of time is allowed usually on the basis that reasonable efforts had been made without success to trace the defendant and to effect service of process.
  3. Therefore, in most cases, a defendant is likely to hear of a claim within eight years of the date of the occurrence of the incident upon which the claim is based.
Preserving Records
  1. If possible, medical records should be kept forever.
  2. As a general rule, in the private sector, in cases where claims are expected, the records must be kept for at least eight years after the date of the incident concerned and may then be destroyed if no claim has arisen.
  3. Once a claim has arisen, the relevant records should be preserved at least until the conclusion of the case. It is important to seek legal advice as regards whether a case in court has been concluded.
  4. As a general rule, where a claim against the Government or a public university established under the Act of 1971 is expected, the medical records must be preserved for a period of at least five years from the date of the incident concerned or, in the case of a continuance of injury or damage, from the date of ceasing thereof.
  5. There is subsidiary legislation made under the Private Healthcare Facilities and Services Act 1998 by which private hospitals and private health care professionals are required to preserve the medical records for the duration of the limitation period. This is a difficult rule to follow because very often the keeper of the records may not be aware of all the factual circumstances which are relevant to establishing the limitation period in a particular case.
  6. Furthermore, as noted above, there are cases where no limitation period applies. And there can be cases in which medical records may need to be preserved for non-legal reasons well beyond the expiry of the limitation period.
Exceptional Situations Regarding Limitation Periods
  1. There are some exceptional situations regarding limitation periods.
  2. There have been some complex changes in the law made in 2019, which are applicable only in West Malaysia. A distinction is drawn between claims based on personal injury and those not based on personal injury, for which latter category there has been introduced a “knowledge” rule so as to extend the usual limitation period, as will be explained further below.
  3. In the case of persons under a legal disability, such as minors and persons of unsound mind, time does not run while their disability exists.
Age of Majority
  1. The age of majority is eighteen years. Although minors, while being under such a disability, may bring claims by their litigation representatives during their minority, such minors may themselves bring claims in their own right upon attaining majority.
Claims based on Personal Injury
  1. Therefore, in the case of a minor patient, if a personal injury claim is expected, particularly in the obstetric and paediatric fields, in the private health care sector, the records should be kept until the patient attains at least the age of twenty-six years. This is because of taking into account the usual limitation period, the “stretching” of the limitation period, and the time allowed for service of a writ of summons. The records may then be destroyed if no claim has materialised or is pending, subject, however, to such requirements as continuing patient care.
  2. In the case of public officers, the Government, and the public university hospitals which are governed by the Act of 1971, the records should usually be preserved until such patient attains the age of twenty-three years.
  3. In law, a person who is in a coma or is so severely brain-damaged as to be unable to make a rational decision regarding his or her interests would be regarded as being of unsound mind. So long as the patient is of unsound mind, which can often mean for life, the medical records must be kept during the entire period of unsoundness of mind, and thereafter for at least another eight years (but, in the case of Government and university hospitals which are governed by the Act of 1971, for another five years).
  4. There are cases of people with more than one legal disability, e.g. a patient who is a minor and is also severely brain-damaged. In such a case, even when the patient reaches the age of majority, time will still not run if he or she continues to be of unsound mind.
  5. Another situation where the limitation period can get “stretched” in a claim based on personal injury is if it is shown that the plaintiff’s right to sue was concealed by fraud or mistake. This situation hardly ever arises in medical negligence, though.
  6. Fraud in the law of limitation is not the ordinary type of fraud. It is unconscionable conduct on the part of a defendant, for instance, by withholding information, which conceals a plaintiff’s right to sue for malpractice.
  7. Therefore, doctors and hospitals should be careful about withholding information, including medical records, from patients and others with a lawful interest in seeing such records. To withhold such information may lead the Court to make a finding of fraud against a healthcare provider.
Amendments to the Limitation Act in 2019 – Limitation Periods for Cases not involving Personal Injury
  1. In 2019, the Limitation Act was amended so as to provide for “stretching” of the limitation period in cases not involving personal injury where the right to sue could not have been known earlier. Furthermore, the length of that period of “stretching” can vary according to whether the person concerned is or was under a disability or not.
  2. At the risk of oversimplification, first of all, in the case of a plaintiff who is not under a disability (e.g. infancy or unsoundness of mind), where no personal injury is involved, an additional period of three years is added, starting from the date that the plaintiff knew of the right to sue, even if those additional three years would take the claim beyond the ordinary limitation period of, say, six years in an action.
  3. However, there is a maximum limitation period. An action which is not based on personal injury shall not be brought after the expiration of fifteen years from the date on which the cause of action accrued, even though there was a long delay, beyond the usual limitation period, in the person concerned acquiring knowledge of it.
  4. Then there is now a new and specific limitation period for cases not involving personal injury where the plaintiff is a person under a disability. In such a case, time will run for a period of three years after the person concerned had ceased to be under the disability or had died. So, in the case of a minor, time will run from the date of attainment of the age of majority, which is eighteen years. If a minor dies at the age of, say, sixteen years, time will expire three years after the death.
Cases of Healthcare Not Involving Personal Injury
  1. While much of medical malpractice litigation involves personal injury, there can well be cases against healthcare providers arising out of patients’ cases in which no issue of personal injury arises but therefore the provisions regarding extension of the limitation period apply because of a delay in acquiring knowledge of the right to sue. Examples are given below:
    1. where a patient sues for loss of earnings from a vocation or an employment arising out of a medical report in which is alleged to have been stated wrongly that the patient is medically unfit to undertake the activity concerned (it can happen in professional partnership disputes, for instance);
    2. where a patient alleges undue influence by a doctor while acting in a professional capacity as a result of which the patient had made a gift to the doctor;
    3. where a doctor has been alleged to have committed or threatens to commit a breach of the duty of confidentiality owed to the patient; and
    4. where a doctor, while acting in a professional capacity, has interfered in a patient’s personal life so as to cause the patient to lose a gift or an inheritance from a member of the patient’s family.
  2. In those examples given above, the “knowledge” point could be used to extend the limitation period up to a maximum of fifteen years running from the date of the occurrence of the event upon which the claim is based.
“Pruning”, Microfilming, Digitalisation and Destruction of Records
  1. Records may be “pruned”. The records of old cases may be destroyed because nothing further is happening. In cases where medical treatment is continuing, old and out-of-date information may be removed from the records so as to prevent important, more current, and more relevant information from being “buried” in the records.
  2. Delays in retrieving information can be avoided or reduced by judicious “pruning” of the records.
  3. Older records which are on paper may be microfilmed. Medical records may be kept in digital form. Medical records which are in digital form or are microfilmed are admissible in evidence. Care must be taken to preserve the integrity of medical records, whether computerised or otherwise.
  4. Hospital managements and doctors should identify the cases which have gone to court or have the potential for litigation when deciding which records to destroy and which to preserve.
Witnesses and Documents
  1. Hospital managements and doctors should keep in mind vital rules of evidence, for instance, the “best evidence” rule and the rules regarding hearsay evidence.
  2. In view of these rules, as far as possible, for the purpose of a court case, the original records must be preserved. Also, the makers of the documents must be identified and called as witnesses to testify to the contents of the documents. Ordinarily, documents do not prove themselves and their contents by mere production in court.
  3. The names and contact details of witnesses, including those who had made entries in the medical records, must be kept on file.
  4. In some cases, such documents as patient registers; patient attendance records; and staff rosters and attendance records become vital evidence.
Delays
  1. Once a case commences in court, there is no time limit within which it must be concluded. Therefore, cases can and often do continue in court well after the end of the limitation period, if any. So long as a case is pending in court, the relevant medical records and other relevant documents must be preserved.
Conclusion
  1. It would be a gross oversimplification to say that the limitation period is usually three years to six years running from the date of the incident concerned. In some cases, there is no limitation period at all. In some other cases, the limitation period may get “stretched” well beyond the usual period. And in yet another case, time will not run during the lifetime of the person concerned but will run from the time of death of the person.
  2. The law of limitation is complex enough to create uncertainty in certain cases as regards the question of how long the documents should be preserved.
  3. The facts of a particular case may require a healthcare professional to seek specific advice from a lawyer or a professional or industry support group in regard to the subject-matter of this note.
  4. The failure of a custodian of medical records to preserve them long enough can work to the detriment of the custodian in court.
All Rights Reserved
9 December 2020

 

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