Extended limitation periods: a consideration for retaining medical records

This article was originally published in AMA Victoria's blog, Stethoscope, October 2023.

This article was co-authored by Estelle Sutherland, Paralegal, Melbourne.

An important aspect of obstetric and gynaecological practice is the secure retention of patients’ medical records. In Victoria, medical practitioners must retain medical records of adult patients for a minimum of seven years from the last entry, and for children until the child reaches 25 years old. However, practitioners should remain cognisant of potential extension of the limitation period for litigation when considering whether to destroy old records.

Limitation period in Victoria

In Victoria, the limitation period for a personal injury action is three years from the time at which the cause of action is discoverable, six years for a minor or person with a disability, or 12 years from the date of the alleged negligence (the long-stop period), whichever occurs earlier: Limitation of Actions Act 1958 (Vic) ss 27D, 27E. For a cause of action to be “discoverable”, the plaintiff must be aware that the defendant was allegedly responsible for the injury due to their acts or omissions.

A court may take into account various considerations in determining whether the limitation period should be extended (see s.27L Limitation of Actions Act 1958 (Vic)). Importantly, the court will consider the extent to which the delay may cause prejudice to the defendant. The availability of medical records relating to the alleged negligence may be considered by the court when making this determination. Case law in Victoria indicates that courts generally lean in favour of extending the limitation period.

Case #1 - 2023

A recent case was initiated by a young man and his mother, the first and second plaintiffs. The first plaintiff was born by emergency caesarean section and claims that, due to birth asphyxia, he now suffers from cerebral palsy. The plaintiffs claim that the treating obstetrician (the defendant) was negligent in failing to arrange an earlier elective caesarean section. The defendant pleaded a limitation defence, arguing that he could no longer recall the events of 1996, and that some records from the events in question had been lost or misplaced. The Supreme Court of Victoria ultimately found that, while certain prejudice did arise from the inordinate delay, there were sufficient records available to allow for experts to opine on the management by the defendant.

Case #2 - 1768

A particular case held in 1768 indicates that plaintiffs have a high prospect of success in extending the limitation period, even where the 12-year long-stop period has expired. In this case, the delay of over 14 years after the alleged negligence was found to cause specific prejudice to the defendant. However, on balance, the court found that a fair trial was still possible as the defendant could obtain expert opinions for a defence.

Case #3 - 2018

Finally, in a particular case held in 2018, the Victorian Court of Appeal granted an extension of the limitation period after a delay of 16 years. The court considered the grave nature of the injury suffered, the plaintiff’s personal characteristics, knowledge and background, and the need to consider the position of the plaintiff as a lay person without legal knowledge.

Key takeaways

As Victorian courts are generally minded to extend the limitation period in favour of plaintiffs, practitioners should remain mindful of the potential consequences of destroying old medical records. If there have been known complications post-birth or a request for medical records from the family – which may indicate the potential for future litigation – practitioners should be cognisant of the benefits of retaining these records until they are certain that they are no longer needed. This is particularly the case for obstetric files, which may become the subject of litigation well beyond the standard limitation period.

Read other items in Australian Healthcare Brief - December 2023

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