COMMENTARY: Michigan legislation on sexual assault prevention and retention of medical records

By Patrick J. Haddad

Significant legislation protecting patients in Michigan from sexual assault was enacted into law in June, 2018. In addition, the Michigan House adopted additional legislation at the end of May, 2018, which is pending in the Michigan Senate as of the publication of this article. It remains to be seen how the enacted and pending legislation, if enacted into law, will affect the practice of the health professions in Michigan. This article addresses how the enacted and pending legislation may affect the retention of medical records. This is particularly an issue for physicians whose scope of professional practice places them at risk for the assertion of civil or criminal sexual assault claims by patients and would need to rely on medical records to defend such claims. Relevant matters evidenced by the medical records may include the patient’s informed consent, the medical legitimacy of the examination or procedure, and the presence of a chaperone during the examination or procedure.

Public Act 182 of 2018
(Senate Bill 871)
This legislation was adopted on June 12, 2018 and becomes effective on September 10, 2018. It extends the criminal statute of limitations for second and third degree criminal sexual conduct involving a minor to 15 years after the offense is committed or the victim’s 28th birthday, whichever is later. The criminal statute of limitations for second and third degree criminal sexual conduct offenses against adult victims, and the period for fourth degree criminal sexual conduct offenses against adults and minors, remains unchanged; i.e., 10 years after the offense is committed or the victim’s 21st birthday, whichever is later. An exception which permits tolling of the statute of limitations, based on DNA evidence from unidentified individuals, remains in place for adults and now applies to offenses for second and third degree criminal sexual conduct committed against minors. There continues to be no statute of limitations for first degree criminal sexual conduct offenses committed against adults or minors; i.e., an individual can be charged with first degree criminal sexual conduct at any time after the offense is committed.

Public Act 183 of 2018
(Senate Bill 872)
This legislation was adopted and became effective on June 12, 2018. It extends the periods under the civil statute of limitations for lawsuits to recover damages because of criminal sexual conduct. The legislation incorporates the definition of “criminal sexual conduct” from the Michigan Penal Code. For victims who are adults when the offense is committed, the civil period of limitations is extended from 2 years (i.e., the existing period for assault and battery claims generally) to 10 years (i.e., the new period for claims for criminal sexual conduct). The period of limitations begins to run after the claim first accrues. It is not necessary that a criminal prosecution has been brought or that any prosecution resulted in a conviction. There is no extended discovery period, which will now be available to victims who are minors as described below. The existing 5-year period of limitations for assault and battery claims involving spouses or individuals in dating relationships remains unchanged, but is extended to 10 years for claims for criminal sexual conduct. Claims for assault and battery not involving criminal sexual conduct or spousal/dating relationships remain subject to the 2-year period of limitations. Subject to the changes made by the legislation, the existing 3-year period of limitations continues to apply to claims for death or injury to persons or property when no other period of limitations is specified by law.

Before Public Act 183, victims who were minors when sexually assaulted had two years or until their 19th birthday, whichever was later, to bring suit. Public Act 183 provides that victims who are minors when sexually assaulted may file suit by the latest of (i) the victim’s 28th birthday or (ii) three years after the victim discovers, or through the exercise of reasonable diligence should have discovered, both the injury and the causal relationship between the injury and the criminal sexual conduct. The three-year discovery period runs indefinitely; there is no statute of repose that cuts off the time to file suit under the discovery standard. As with claims by adult victims, it is not necessary for claims by minors that a criminal prosecution was brought or that any prosecution brought resulted in a conviction.

Public Act 183 has limited retroactive effect. It provides that an individual who, while a minor, was the victim of criminal sexual conduct after December 31, 1996, but before two years before the legislation’s effective date, may file suit within ninety (90) days after the legislation’s effective date, if the person alleged to have committed the criminal sexual conduct was convicted of first degree criminal sexual conduct against any person and admitted that (i) he or she was in a position of authority over the victim as the victim's physician and used that authority to coerce the victim to submit, or (ii) the defendant engaged in purported medical treatment or examination of the victim in a manner that is, or for purposes that are, medically recognized as unethical or unacceptable. Claims that meet the preceding qualifications that are not filed within the 90-day period will be time-barred by the statute of limitations. Retroactivity is not available to victims who were adults when sexually assaulted.

House Bills 5783 and 5793
These bills passed the Michigan House on May 24, 2018 and as of the publication of this article are pending in the Michigan Senate. They require performance of medical encounters involving vaginal or anal penetration to be documented in a patient’s medical records, including records maintained by health facilities or agencies. These records will need to be maintained for at least 15 years. Such procedures must be within the scope of practice of the treating health professional. A medical assistant or another licensee or registered health professional must be in the room during the encounter. Licensing and criminal penalties and fines are provided for violations of the legislation.
The legislation will require written parental consent before procedures involving vaginal or anal penetration may be performed on a minor. The consent form must be maintained in the patient’s medical record for not less than 15 years from the date on which the medical treatment, procedure or examination was performed. The Department of Licensing and Regulatory Affairs is required to create a standardized consent form for use by licensed and registered health professionals.
The requirements of the legislation do not apply to treatment (i) necessary and associated with, or incident to, a medical emergency (i.e., a circumstance that in the licensee’s or registrant’s good-faith medical judgment creates an immediate threat of serious risk to the life or physical health of the patient), (ii) if primarily related to the patient’s urological, gastrointestinal, reproductive, gynecological, or sexual health, (iii) if performed at a children’s advocacy center, as defined in Michigan’s Child Protection Law, (iv) if performed for purposes of a sexual assault medical forensic examination under Section 21527 of the Public Health Code, (v) if performed for the purpose of measuring the patient’s temperature, or (vi) if performed for the purpose of rectally administering a drug or medicine.

The Michigan licensing boards for physicians, chiropractors, physical therapists and athletic trainers will be required to develop a document providing guidance on generally accepted standards of practice for certain services involving vaginal or anal penetration. The document will be publicly available.

Affect on Retention of Medical Records
Physicians who are exposed to the assertion of sexual assault claims by adults and minors, due to their professional practice, should re-evaluate their minimum medical record retention periods in light of Public Acts 182 and 183 and House Bills 5783 and 5793, if enacted into law as written as of the publication of this article. Subject to further evaluation once the disposition of House Bills 5783 and 5793 is known, such physicians may need to consider retaining their medical records for no less than 10 years (assuming the exceptions in House Bills 5783 and 5793 apply) from the date of service for adult patients and until minors reach at least 33 years of age. These periods exceed existing minimum retention periods for Michigan licensing purposes (seven years), the minimum retention period for the medical records of adults enrolled in Medicare Advantage plans (10 years), and the statute of limitations for professional liability claims (capped at six years from the date of service for adults and minors, subject to exceptions for claims which have been fraudulently concealed or for injury to a reproductive organ resulting in the inability to procreate).
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Patrick J. Haddad is a member of Kerr, Russell, and Weber PLC. His legal practices focus on health care and insurance. Kerr Russell is legal counsel to the Oakland County Medical Society. Haddad may be reached at 313-961-0200, or phaddad@kerr-russell.com.