By P S RANJAN, Advocate and Solicitor

Introduction

Medical Reasons

2. The medical records must be kept for so long as they are necessary for the treatment and management of cases.

3. For long, the law generally did not say in what form or with what content medical records must be kept. However, now the Private Healthcare Facilities and Services Act 1998 and the subsidiary legislation made under it make some provision in that regard.

Legal Reasons

4. The medical records must be kept for so long as there are legal reasons for doing so.

5. 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.

6. 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.

7. For long, the law generally did not say in what form or with what content medical records must be kept. 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

8. There is no limitation period for criminal or disciplinary 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 or further proceedings would arise.

9. There are limitation periods for many types of civil cases. There are exceptions too. An example of an exception is matrimonial proceedings.

Private Hospitals and Doctors

West Malaysia

East Malaysia

11. 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 that the right to sue arises.

12. 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.

13. The law of limitation in East Malaysia is quite complex, much more than in West Malaysia.

Government and University Hospitals

Public Officers

Fatal Accidents

16. In the case of a fatal accident, whether in East Malaysia or West Malaysia, a claim made by members of the family of a deceased person under the Civil Law Act 1956 (often loosely called a “dependency claim”) must be brought within three years of the date of the death of the person.

17. It appears that a claim on behalf of the estate of a deceased person (often loosely called an “estate claim”) must be brought within six years of the event giving the right to sue but the legal position is not clear as regards situations where there is delay in obtaining grant of representation of the estate, especially where the deceased left no will.

Service of Process

18. Process of the High Court may be served within six months of issue or, upon application to the Court, within a further six-month period. In the Sessions Court and Magistrate’s Court, process may be served within a year of issue or, upon application to the Court, within a further year.

19. 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.

20. Most claims are brought in the Sessions Court and the Magistrate’s Court. Therefore, in most cases, a defendant is likely to hear of a claim within eight years of the date of the occurrence of the injury.

Preserving Records

21. If possible, medical records should be kept forever.

22. As a general rule, 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.

23. Once a claim has arisen, the relevant records should be preserved at least until the conclusion of the court. It is important to seek legal advice as regards whether a case in court has been concluded.

24. As a general rule, where a claim against the Government or a 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.

25. There is subsidiary legislation made under the Private Healthcare Facilities and Services Act 1998 by which private hospitals and 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. As mentioned above (and below), the limitation period may vary from one case to another.

Exceptional Situations Regarding Limitation Periods

26. There are some exceptional situations.

27. In the case of persons under a legal disability, such as infants and persons of unsound mind, time does not run while their disability exists.

28. The age of majority is eighteen years. Although infants may bring claims by their next friends during their minority, such infants may bring claims in their own names upon attaining majority.

29. Therefore, in the case of an infant, if a claim is expected, particularly in the obstetric and paediatric fields, and particularly in the private sector, the medical records should be kept for at least eighteen plus eight, therefore twenty-six years, running from the date of the incident concerned. The records may then be destroyed if no claim has materialized is pending, subject, however, to such requirements as continuing patient care.

30. In the case of public officers, the Government, and the University hospitals which are governed by the Act of 1971, the minimum period may be reduced to twenty-three years.

31. 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 a patient is of unsound mind, which often means for life, the medical records must be kept during the entire period of unsoundness of mind, and thereafter for at least another eight years (in the case of Government and University hospitals which are governed by the Act of 1971, for another five years).

32. There are cases of people with more than one legal disability, e.g. a severely brain-damaged infant. In such a case, even when the infant reaches the age of majority, time will still not run, if the person continues to be of unsound mind.

33. Another situation where the limitation period can get “stretched” 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.

34. 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 instance, for malpractice.

35. 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.

“Pruning”, Microfilming and Destruction of Records

36. 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.

37. Delays in retrieving information can be avoided or reduced by judicious “pruning” of the records.

38. Older records may be microfilmed. Computerised medical records are admissible in evidence. Care must be taken to preserve the integrity of medical records, whether computerised or otherwise.

39. 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

40. Hospital managements and doctors should keep in mind vital rules of evidence, for instance, the “best evidence” rule and the rules regarding hearsay evidence.

41. 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.

42. The names and contact details of witnesses, including those who had made entries in the medical records, must be kept on file.

43. In some cases, such documents as patient registers; patient attendance records; and staff rosters and attendance records become vital evidence.

Delays

Seeking Advice

21 November 2007
medrec