Document retention and insurance coverage in light of the revised statutes of limitat

The revised statutes of limitations have been in force since 1 January 2020. The impetus for the revision was the desire to grant so-called “late damages” a longer limitations period. Damage to health caused by asbestos, in particular, may not become apparent until decades later and, under previous legislation, could only be claimed in non-contractual relations one year after knowledge of the damage (relative limitations period), and in any case a maximum of ten years after the damaging conduct (absolute limitations period).

New legal situation for contractual and non-contractual claims

The new limitations period under the Swiss Code of Obligations for claims for damages or satisfaction in the event of death or bodily injury, both in the case of contractual and non-contractual claims, is three years after knowledge of the damage and of the party liable to pay compensation, but in any event after twenty years. As a result, physicians, for example, must now expect a limitation period for possible personal injury from their treatment or employers from their employment contracts to be twice as long as before. The extended period of liability is somewhat offset by the fact that the further back an injurious event takes place, the more difficult it is to prove the damage.

For all other damages, i.e. property damages and pure financial losses, the non-contractual claim for damages or satisfaction shall become time-barred after three years from knowledge of the damage and of the party liable to pay compensation and ten years after the occurrence of the damaging event or its termination; the contractual claim shall continue to be generally time-barred after ten years.

The statute of limitations rules in purchase and work and services contract law, insurance law and product liability remain unchanged. The statute of limitations rules concerning cantonal state liability for official activities - such as activities in hospitals the cantons run – will either be adapted to the new statute of limitations rules, depending on the canton, or will remain with the previous (significantly shorter) statute of limitations and forfeiture periods.

Storage of documents

The obligation to keep documents is not regulated consistently in Switzerland. There are various regulations at both the federal and cantonal level. For example, there is a ten-year retention obligation under federal law - and under certain circumstances a duty to edit - for business books, accounting vouchers and business correspondence.

Documentation and accountability obligations result from mandate law. For example, doctors must create patient files in order to fulfil their contractual obligation, lawyers must keep client files and architects and engineers must keep documentation in case of a mandate agreement - for example in connection with procurement or construction management.

Previously, it was assumed that patient and client files must be kept for ten years. The retention period does not begin until the mandate agreement is terminated. However, federal and cantonal health laws already assumed that, at least in certain cases, there are longer retention periods of up to 20 years for documentation (for example, in connection with transplants, laboratory analysis results, blood and blood products). In the course of the extension of the statutes of limitations, the obligation to keep records was not increased from ten years to twenty years, in line with the limitation periods. It is not yet clear whether the retention periods for patient files in the cantonal laws will be adapted to the new limitations’ periods.

In the past, it could be assumed as a rule of thumb that an obligation to keep documents existed for ten years - unless it was clear or at least foreseeable that legal proceedings were imminent - but this has changed as a result of the change in the limitations periods for personal injury. If liability for personal injury is possible, it is advisable to keep the documentation for 20 years after the end of the legal relationship. In the case of contractual liability, this already results from the duty to render due account. In addition, the documentation of one's own actions in the event of damage is important for providing evidence. From the point of view of the liable party, e.g. the physician, the documentation is of great importance, especially in cases where the burden of proof is reversed, such as in connection with the informed consent of the patient.

In summary, it is recommended that those professionals from which a risk to the health of a person may emanate should keep their files in accordance with the extended limitations period in order to be able to present the evidence should it be needed. However, this does not mean that all data must be archived in its original form. Apart from certain exceptions, electronic filing is sufficient, provided that it complies with data protection requirements (no access to data for unauthorized persons, technical security, etc.). It should be noted in this context that documents containing personal data must be destroyed after the statutory retention period has expired, unless longer retention is justified. Such justifications include the consent of the data subject or an overriding interest of the person storing the documents. The latter is given, for example, if the person storing the documents needs access to the files for reasons of proof.

Insurance

The heightened liability risk as a result of the extended limitations periods must be taken into account. This is particularly true for (professional) liability insurance policies, which are regularly based on the “claims made” principle. In such circumstances it is advisable to agree on a supplementary cover of twenty years.

Transitional provisions

For all claims not yet time-barred on 31 December 2019, the longer law will apply in accordance with the transitional provisions: if the new provisions provide for a longer period, this will apply; if the previous provisions provide for a longer period, the latter will apply. Claims already time-barred remain so barred. In principle, the new longer limitations period rules can therefore be assumed to apply, unless the claim has already been time-barred since the end of 2019.

May 2020 | Authors: Lucy Gordon, Stefanie Fuchs

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