Ob/Gyn Medical Records Retention: What if the Baby Grows Up and Files Suit?

Is your practice’s ob/gyn medical records retention policy adequate? Are you retaining obstetrics records long enough to both comply with state statutory requirements and allow for the proper defense of a birth injury lawsuit not filed until the infant is a teenager?

In this article, MICA explains why sufficient records retention is essential, especially for obstetricians. We offer conservative timeframe recommendations for records retention and conclude with a reminder about the importance of maintaining adequate insurance coverage for a sufficient length of time.

State Laws Governing Records Retention

In all states, physicians and advanced practice providers have a professional responsibility to maintain adequate patient care records. Statutes governing how long clinicians and their practices must retain medical records vary by state. These laws apply regardless of medical specialty. In many states, shredding records prematurely exposes clinicians to the risk of licensing board discipline.

The Importance of the Medical Record in Defending Malpractice Claims

In addition to compliance with state records retention requirements, proper records retention is vitally important for defense of lawsuits. A clinician’s medical records are essential for a strong, effective defense.

Lawsuits are not filed the week after you provide care. Generally, they are filed years later. As a result, physicians and advanced practice providers usually rely on medical records to refresh their memory so they can testify about the patient and the care provided. Ideally, the records contain details about informed consent conversations, the clinician’s thought process and rationale, clinical exam findings, the patient’s medical history, and more. Defense expert witnesses also rely heavily on the medical records to form an opinion that the clinician met the standard of care.

As a result, premature destruction of your medical records could be the difference between a defensible case and one that needs to be settled. Clinicians and their practices need to protect against this risk with a written records retention policy that takes into consideration state-specific records retention requirements and the state’s statute of limitations (i.e., the time period within which a plaintiff must file a medical negligence lawsuit).

Risks of Inadequate Retention Periods for Obstetrics Records

Obstetricians are at particular risk if they prematurely destroy records because, depending on the state’s statute of limitations, birth injury lawsuits may be filed 15 or 20 years after birth. This is because some states “toll” (put on hold) the statute of limitations when the person who allegedly suffered injury is a minor. Therefore, the clock may not begin to tick for birth injury cases until the child reaches a certain age.

Regardless of where in the U.S. you practice, your retention policy should be calculated to:

• • Comply with applicable records retention requirements (state, federal, and payor) and
    
    
  • Ensure that whatever the latest possible date is for filing of a lawsuit, you will still have the medical records.

Clinicians should consider consulting their practice attorney to obtain specific statute of limitations information when developing a records retention policy. In addition, at the end of this article, MICA’s Risk Team offers some conservative recommendations for obstetricians about how long to keep records.

The following hypotheticals based on Arizona law highlight just how many years may pass before you are served with a lawsuit arising out of labor and delivery:

• • You are an obstetrician who owned a birthing center. In 2022, you sell the practice and retire. Back in 2009, one of your employed obstetricians provided prenatal care and ultimately delivered a baby who was born with deficits. In 2023, the parents of that child file a medical negligence lawsuit against you, the practice, and the employed physician.
    
    
  • You are an obstetrician who delivered a baby in 2010 at the hospital where you had privileges. The infant was born with neurologic deficits. Sixteen years later, in 2026, the child’s parents file a malpractice lawsuit against you. They allege their son is permanently disabled due to your breach of the standard of care during labor and delivery. They also sue the practice that employed you in 2010, alleging the practice is vicariously liable for the care you provided.

In either one of these cases, if you no longer have the medical records, your defense will likely be significantly handicapped. This is especially true for scenario number one, where the practice owned the birthing facility. In that case, if records were prematurely destroyed, there would be no prenatal or labor and delivery records. In scenario two, the hospital hopefully has the labor and delivery records. Generally, however, you will also need prenatal records to adequately defend the labor and delivery decisions you made.

Spoliation

Without medical records, a defense attorney will likely recommend settlement over trial for several reasons, including:

• • As discussed above, due to the passage of time the physician likely will be unable to testify in detail about the health care provided;
    
    
  • Without testimony or records documenting the care provided, defense experts will struggle to provide credible testimony that the physician met the standard of care;
    
    
  • The plaintiff likely will seek a spoliation instruction.

Spoliation of evidence is a legal theory recognized in many states. It allows a court to level the playing field when one party to a lawsuit allegedly destroys evidence they had a duty to preserve, and the other side claims prejudice as a result.

In the context of a medical malpractice lawsuit, spoliation usually becomes an issue when the defendant physician, hospital, or medical practice no longer has the medical records. In this situation:

• • The plaintiff may argue that the defendant willfully destroyed the records because they showed the defendant’s care was negligent.
    
    
  • Even where the defendant disputes this characterization, there is a risk that the judge will grant the plaintiff’s request for a spoilation instruction.
    
    
  • If granted, the instruction allows jurors to assume that the unpreserved evidence (i.e., the medical records) contained information unfavorable to the defendant (e.g., that supported plaintiff’s negligence allegations).

MICA Risk Team Obstetrician Records Retention Recommendations

Consult your attorney to develop a records retention policy based on applicable law where you practice. You should also consider individual insurance plan requirements for records retention. MICA’s Risk Team offers these conservative recommendations for obstetricians in states where MICA writes coverage.

Arizona

• Retain 25-28 years after birth

Colorado

• Retain 25-28 years after birth

Idaho

• Retain 25-28 years after birth

Montana

• Retain 28 years after birth

Nevada

• Retain 25-28 years after birth

Utah

• Retain 25-28 years after birth

Wyoming

• Retain 25-28 years after birth

A Final Word: Don’t Overlook Proper Evaluation of Insurance Coverage

MICA has seen Arizona birth injury lawsuits that were filed 12 years and more after the labor and delivery at issue. In some of these cases, the physician had allowed tail coverage to lapse, perhaps mistakenly thinking a lawsuit was no longer possible.

Obstetricians and ob/gyn practices should work with their carrier or broker to ensure they have adequate coverage that will continue in full force and effect for as long as state law permits a malpractice lawsuit to be filed. Individual physicians are putting their personal assets at risk without adequate insurance coverage.

In addition, plaintiff attorneys often assert that a practice that employed or contracted with the physician at the time of care is vicariously liable for the physician’s conduct. For more information, see MICA’s article, What is Vicarious Liability? It is essential for practices to properly insure against the risk of a vicarious liability settlement or verdict. If the physician’s coverage has lapsed, the practice may be the one plaintiff looks to for compensation.