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Pediatricians and the Law: Committee responds to AAP members’ medical liability questions :

March 25, 2016
Dr. FanaroffDr. FanaroffAAP Fellows often send questions to the Committee on Medical Liability and Risk Management. While the committee is unable to give specific legal advice, following is general information in response to some of those questions that may be helpful.

It is important to recognize that laws vary state-to-state, and legal decisions are dependent on the particular facts at hand. Therefore, it is vital to consult a qualified attorney for legal issues affecting your practice.


Q: Our office is overfilled with charts, and we would love to do a spring cleaning. How long do we have to keep medical records?

A: If a lawsuit is filed and the medical records have been destroyed, it will be hard to defend the care provided. Therefore, medical records must be kept for at least as long as there is a possibility of a malpractice lawsuit.

At a minimum, they should be retained for 10 years or the age of majority plus the applicable state statute of limitations (time to file a lawsuit), whichever is longer. In some states, the statute of limitations does not start until the patient turns 18. So in a state with a two-year statute of limitations, a malpractice case related to newborn care could be filed 20 years after delivery, meaning newborn records need to be kept at least 20 years. Additionally, depending on the circumstances, medical record retention may be dictated by state law, federal regulation or even the Joint Commission.

Q: As part of preventive care, we often advise parents to quit smoking and even offer to help them do this. Are there any medicolegal concerns when prescribing nicotine replacement therapy (NRT) to parents?

A: It is understandable that pediatricians would want to help parents quit smoking. Prescribing NRT for parents does, however, raise a number of medicolegal issues.

For one thing, pediatricians generally do not care for adults and may not be able to assess contraindications, obtain informed consent and deal with adverse effects. A meta-analysis of NRT found a number of adverse events, including an increased risk of heart palpitations and chest pains (Mills EJ, et al. Tob Induc Dis. 2010;8:8).

Additionally, prescribing a medication to a parent establishes a physician-patient relationship, which may create liability exposure for unrelated illnesses and may not be covered by malpractice insurance since it is outside the pediatrician’s scope of practice. Finally, there may be issues related to communicating with the adult patient’s medical home.

Q: We belong to a large pediatric group located about one minute away from a big hospital with a pediatric emergency department (ED). Wouldn’t it be less liability if our policy were to transport emergency patients to the ED rather than try to maintain emergency equipment, drugs and trained staff in the office?

A: Your practice is fortunate to be near a pediatric ED. However, emergencies in the pediatrician’s office are common, and a rapid response from emergency medical services is not always guaranteed. No matter how close you are to the ED, it is likely that your practice will be required to provide emergent care in your office, and the first minutes of the emergency are critical.

The AAP policy statement Preparation for Emergencies in the Offices of Pediatricians and Pediatric Primary Care Providers states that relying on proximity to a hospital is not recommended and that “lack of preparation may be a true cause of increased liability” (Pediatrics. 2007;120:200-212, The policy statement provides recommendations pediatric practices can use to be better prepared for emergencies and minimize liability risks.

Q: Our practice is wondering how to handle “correcting” incorrect electronic health record (EHR) entries by another physician, i.e., surgical, medical and social history as well as problem lists. We are referring to those parts of the record in which everyone shares — not the content of an individual note.

A: Up-to-date and accurate problem lists in the EHR are an important component of providing safe and effective care. Ideally, the problem list is updated at every visit and reflects both acute and chronic issues, in addition to resolved problems.

EHR experts state that “For items on the problem list that don’t belong there, the first question is whether the information belongs somewhere else in the chart, such as in the past medical or family history. Most of the time, problems should be removed from the problem list by resolving as opposed to deleting them. Deleting a problem should be reserved for entries that were an error in the first place” (Hummel J and Evans P. Standardizing the Problem List in the Ambulatory Electronic Health Record to Improve Patient Care,


Email your questions for a future column in AAP News to Julie Ake at

Dr. Fanaroff is a member of the AAP Committee on Medical Liability and Risk Management.

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