Ownership of Medical Records
Two common kinds of disputes arise regarding ownership of medical records. The first is when a patient wants a copy of their records, and demands possession of the original paper (or now electronic) file.
As a general rule, physicians have the right of ownership in the physical pieces of paper that constitute the patient records they develop in their office. However, a patient's right to the information contained in their medical record is explicit in the Medical Practice Act: “a physician who receives a written consent for release of information...shall furnish copies of the requested billing or medical records, or a summary or narrative of the records, including records received from a physician or other health care provider involved in the care or treatment of the patient.” In other words, the patient’s right is to a copy, summary or narrative, not the original.
The other kind of dispute arises in “practice separation” situations. Here a departing physician may demand possession of the original paper (or now electronic) files of all patients he has treated. These disputes are often acrimonious and a departing physician may allege his employer is interfering with his ability to practice if the charts are not promptly handed over to him.
The Texas Medical Board has a general rule that “[m]edical records may be owned by a physician's employer, to include group practices, professional associations, and non-profit health organizations.” This implies that records are owned by the legal entity under which a physician practices and comports with the traditional understanding. In the departing physician situation, a TMB rule requires departing physicians to send notices to patients stating, among other things, “who has custodianship of the records, and how the medical records may be obtained.” This is to ensure continuity of care, not settle ownership disputes, but the effect has been to reinforce ownership claims by employers.
Occasionally a “business divorce” arises where a partnership break up, and former partners fight over the files of patients. A logical way to resolve that problem is to divide charts based on who is identified as the primary treating physician, but such issues can wind up in court. There is no Texas caselaw on this subject, so the outcome cannot be predicted.
Does HIPAA provide an answer to these questions? Not directly; HIPAA deals with “[u]ses and disclosures of protected health information” and not ownership. However, one permitted use is for “health care operations” that include the “sale, transfer, merger, or consolidation of all or part of the covered entity with another covered entity.” This only moots the argument that patient consent is required to transfer records as part of a practice sale.
The use of electronic medical records may moot some of these questions, as the ability to copy files to removable media destroys the argument that providing records is too difficult and time consuming. However, it will not moot the argument of whether someone is improperly marketing his services not only to his own patients but to other patients of the practice as well (possibly in violation of restrictive covenant). And it may do nothing to assuage the growing belief that patients lack access to their medical records, but no one else, including marketing firms, pharmaceutical companies and hackers, seems to have any problem accessing (or stealing) their information.