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How Medical Records Must Document Sexual Assault in Michigan

What physicians and facilities need to do to comply with state law

Following the revelations that former U.S. Gymnastics national team doctor and Michigan State University employee Larry Nassar sexually assaulted as many as 250 underage girls, legislators in the state of Michigan began pushing significant reforms to enhance and protect the rights of victims.

“The medical record retention periods are the thing that has changed the most as a result of the scandal,” says Daniel J. Schulte, a health care attorney with Kerr, Russell and Weber in Detroit. “Some of Larry Nassar’s victims’ would have been barred because of the existing statute of limitations; that fact and what we learned about the victim’s experience and mindset that cause years-long delay in reporting sexual abuse crimes resulted in changes in the law.”

At least 37 different bills were introduced in the state legislature in response to the Nassar scandal. Some have already been signed into law, while others are working their way through the legal process and may be enacted in the coming years. Medical and health professionals and health care providers in Michigan should ensure that their practice is in full compliance with all relevant Michigan law regulations. Here’s an overview of some new ones:

  1. Enacted — Extended Criminal Statute of Limitations: Made effective as of Sept. 10, 2018, Public Act 182 extends the criminal statute of limitations for second- and third-degree sexual assault offenses committed against a minor who is under the age of 15. The statute of limitations for such a crime is now 15 years from the date of the offense or the victim’s 28th birthday, whichever date comes later.
  2. Enacted — Extended Civil Statute of Limitations: Public Act 183 was also signed into law and became effective in September 2018. This legislation extends the civil statute of limitations for lawsuits related to criminal sexual misconduct. The statute of limitations for such an offense was previously two years; it is now 10 years.
  3. Pending — Fifteen-Year Medical Record Retention Requirement: Finally, medical professionals and healthcare providers in Michigan should pay close attention to House Bill 5783 and House Bill 5793. Passed in the Michigan House in the Spring of 2018, these bills are still pending. If enacted, they would require that the patient’s medical records related to any medical encounter or medical treatment involving vaginal or anal penetration be retained and maintained for at least 15 years.

Telling a physician what the statute of limitations is for a claim is not as simple as looking up a number, Schulte notes. It depends on a variety of factors including the type of treatment involved, the age of the patient, the body part involved, “and on and on it goes. You have to have ask a number of questions and work your way through a number of factors to determine the correct statute of limitations,” he says.

Statutes of limitations laws are more involved than a simple number, Schulte notes. It depends on a variety of factors, including the procedures involved, the age of the patient, “and on and on it goes, until you end up with very complex formulas you have to go through to figure out if the statute of limitations is going to be applicable to a claim,” he says. “After these bills, if you’re performing treatments where a sexual assault claim could arise, our advice is to keep the records for a minimum of 10 years. If it’s a minor patient, retain them until they reach age 33.”

In both civil and criminal sexual assault cases, medical records and health records are an important form of evidence. It is crucial that all physicians and facilities have a strong system in place to ensure that these sensitive medical records and medical information are kept secure and carefully maintained in compliance with state law.

“I have a lot of physician clients who want to retire asking how long they should keep their records. It’s not a simple question anymore. This is just the latest example of how it has been made more complex,” Schulte says.

This is why physicians and medical practice managers should consult with an experienced health care lawyer or legal representive for guidance, and not just for medical retention laws. As Schulte notes, the Nassar case is a reminder of several potential liabilities.

“Larry Nassar was a criminal performing criminal acts, and what he was doing is not reflective of the physician community. In my mind, he stands alone. This situation and the fallout from it does serve as a reminder of some best practices that physicians ought to be following,” Schulte adds. “That is, first, educating your patients about their diagnoses and their treatment. It ought to be crystal clear before you begin a treatment exactly why you’re doing it and what you’re doing.”

After that, he adds, seek informed consent and document it in writing. “And when necessary and prudent, or a patient requests it be done, have a nurse or chaperone in the room while a procedure is being conducted so there is a witness.”

Such practices will protect you from potential claims, and set your patients’ minds at ease.

For more information on this area of law, see our overviews of health care law and sex offenses.

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