Statute of Limitations on Patient Records for Minors

Post by Jack Griffeth

The South Carolina Physicians' Patient Records Act provides SECTION 44-115-120: Length of time records must be kept; records pertaining to minors. It details the length of time records must be kept. Here is a refresher on the rules of the Act.

Physicians shall retain their records for at least 10 years for adult patients and at least 13 years for minors. These minimum recordkeeping periods begin running from the last date of treatment. After these minimum record keeping periods, the records may be destroyed.

The South Carolina Physicians' Patient Records Act does not address the statute of limitations questions with regard to minors, particularly those under age six. The statute does not contemplate the South Carolina three year statue of limitations within which a civil suit may be brought, including a medical malpractice case for minors.  A minor has three years from the date of the incident/maltreatment  OR  one year past the age of majority - whichever is longer - to file suit. The 13 year rule does always  preserve evidence which may be needed later. 

If an incident occurs to a 13 year old, the statute of limitations expires on the minor's 19 birthday.  If an incident happens to a 17 year old, that minor has three years from the date of the incident to file suit,: both these instances are covered by the 13 year rule under §44-115-120.

But what about minors six years old and younger – the statute of limitations does not expire until their 19 birthday. Take for example a three year old – the 13 year records requirement falls short of the statute of limitations.  My advice is that medical providers should not to be governed by the 13 year rule for minors but should opt for the safe course as follows: 

· a) identify each minor's chart and flag it (literally or in computer) 

· b) note the date of last treatment 

· c) note the minor's birthday, and make the calculation above of concerning the statute of limitations (three years or one year past majority); and,

· d) index to destroy 150 days thereafter or 13 years after the date of last treatment, whichever is longer. 

The reason for this is that a suit is commenced by "filing" within the statute of limitations, but a party has an additional 120 days to serve the lawsuit. Consequently, you could possibly have suit filed within the statute of limitations and not know it until you are served 120+ days later.