Record, Record, Who's Got the Record?

Whether joining or leaving a practice, physicians should understand their rights and obligations with respect to patient medical records they generate. A new Florida law was enacted in 1997 to help clarify some of these issues. It is essential that health care practices and practitioners understand this new legislation.

The Law

Section 455.667 (formerly Section 455.241), Florida Statutes, was amended in 1997 to provide a specific definition for and obligations of "records owners." The law does not apply to hospitals. A "records owner" means any health care practitioner who generates a medical record after making a physical or mental examination of a patient, or administers treatment or dispenses a drug to a patient. A group practice, staff-model HMO or other physician employer can also be the records owner if the physician's employment agreement designates the employer as the records owner.

In the case of an oral employment agreement or a written agreement which does not address control of patient medical records, the individual practitioner would be considered the records owner. This apparent "default" has important implications for both employers and employed practitioners because of the statutory and regulatory rights to and responsibilities of "records owners."

In general, the amended statute requires all records owners to develop and implement policies, standards and procedures to protect confidentiality and security of medical records. This includes educating staff and logging all third-party disclosures. Furthermore, when a records owner retires, sells or relocates his practice, he is required not only to inform the Board of Medicine, he must inform patients, through newspaper advertisements or written communications, and offer them the opportunity to obtain a copy of their records.

Practitioners are also required to post a similar notice in a conspicuous place in the office for 30 days prior to leaving. To some degree, these statutory requirements have the effect of overriding certain types of non-solicitation provisions contained in a departing physician's employment agreement. Physicians in violation of these provisions can be disciplined by their licensing boards.

Practitioner Right to Records

Upon written request, practitioners who are not "records owners" and whose employment has terminated are entitled to receive medical records that they actually created or generated when treating a patient, limited to those "notes, plans of care, and orders and summaries that were actually generated by the health care practitioner." The amended statute states that the records owner "shall release . . . those records" to such employee, implying that the employee is entitled to the original records, not copies. The statute does not address the situation where records contain notes generated by both the departing physician and other physicians on the same page, resulting in an anomalous situation in which more than one practitioner might be entitled to the original record.

Ultimately, patients (or their legal representatives) are entitled to obtain copies of their medical records "in a timely manner and without delays for legal review" and may request that such copies be made available to the departing practitioner. Whether copies are provided to the departing practitioner or to the patient, the records owner may charge up to $1.00 a page for the first 25 pages, and $.25 a page thereafter, and may charge the "actual cost" (including labor and overhead costs) for reproducing x-rays and other "special" records.

The departure of a physician from any practice is likely to create disruption for the practice, the departing practitioner, and the patients treated by the departing practitioner. For both ethical and practical reasons, practices should be accommodating to patients who ask the whereabouts of departing physicians. The failure to post (or permit the departing physician to post) the notification described above, or the provision of false or misleading information by the practice, may result in an investigation by the licensure board.

In addition, the practice will be exposed to liability including claims based on continuity of patient care, slander, and tortious interference with a business relationship. The rights and obligations of the practice and practitioner regarding medical records are best addressed in the initial employment agreement. But, even where a departing physician will become a competitor, or is bound by a non-competition provision, practices should balance their reluctance to provide patients with contact information regarding a departed physician against the patient's right to be treated by the physician of their choice.

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