What is the law regarding patient charts after the death of their physician?

My father-in-law was a pediatrician; he passed away a year ago. How long do I have to continue to keep the charts? Also, can I just give the chart to the patient or do I have to make a copy of it and continue to keep the record?

Asked on October 22, 2017 under Business Law, Texas


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

The issue of how long they'd be kept is based on malpractice: that is, for how long could a malpractice suit be brought and, is there anyone who can be sued?
In terms of how long, the statute of limitations, or time within which to bring a suit, is 2 years in Texas--two years after completion of treatment. If there were someone to be sued, he should keep the materials for at least 2 years after (I'd recommend 3 or 4, to be safe), so if patients wanted their charts, he should make them a copy (for which he can charge the cost of doing) and keep the originals in case he ever needs the materials to defend himsef.
BUT they were your father-in-law's, and he passed away. If his estate has not been settled (probate completed yet), hold onto the charts as if he were still alive, assuming there is any money or property in the estate you'd want to protect if the estate were sued--the estate can potentially be sued the way he could if alive, and if the estate is sued, that could take away assets you'd otherwise inherit.
But when the estate is fully settled and done, then unless you were his partner in the practice, there is no one who could be sued: you and your spouse are not liable for his actions, obligations, or debts, and once the estate is settled, it no longer exists and can't be sued. (Obviously, if he had a partner, it's for the partner in the practice to decide what to do.) At that time, the charts can be disposed of, though the best way would be to contact the patients and let them get them at their cost (e.g. provide prepaid postage or Fed Ex to send them to them).
My father was a sole practioner CPA; when he passed last year without an estate (nothing to sue), since he always sent his clients copies of everything and they had all their materials already, I simply shredded the back-up copies he kept.

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