Confidentiality: Not Just about HIPAA

Why you can’t take patient records with you – and the rare cases you can

Batya Swift Yasgur MA, LMSW | April 23, 2015

Everyone knows that patient records are confidential. What you may not realize is that confidentiality applies not only to nosy relatives but even to you, the patient’s physician. If you leave the hospital or practice where you saw that patient, you can’t take his or her records with you or even have access to them.

On the surface, this may seem strange. After all, you know these patients well and you’ve been reading their records for years. If they want you to continue treating them in your new practice, why can’t you take their information.

The answer is that patient records do not belong to you. “They are protected proprietary information of the practice you’ve left and are considered to be ‘trade secrets,” explains Steven L. Simas, Esq. health care attorney and founding member of Simas and Associates Ltd., located in Sacramento and San Luis Obispo, Calif. As such, patient records are considered off limits once you leave.

Sometimes, confidentiality clauses in contracts are coupled with noncompete covenants, says Mr. Simas, because they stem from the same desire: Your employer wants to reduce competition and make sure the information developed in one practice can’t be used to build a competing one.

However, there’s a catch: You cannot help yourself to patients’ records because those files, strictly speaking, do not belong to your old practice. The patient has a right to request them, says Mr. Simas, but the former practice does not have to send them to you unless the patient asks the group to do so.

If so, it’s the patient who has to assume the potential expenses of transferring that chart, such as photocopying fees when relevant, notes Dennis Hursh, JD, managing partner of Hursh and Hursh PC, a law firm focused on physician-related legal issues located in Middletown, Pa. Mr. Hursh is the author of The Final Hurdle: A Physician’s Guide to Negotiating a Fair Employment Agreement. “It’s the patient’s choice to follow you to your new practice, so it’s the patient’s responsibility to pay for photocopying.”

Many practices do not demand photocopying or other administrative fees for making charts available to patients. It’s more common, Mr. Hursh observes, in practices that seek to “punish” the departing physician.

At the same time, there are situations in which you should be able to take your patients’ charts. “If you’ve brought a following of patients into the practice,” he explains, “it’s only fair that you take their charts with you, as opposed to those of patients whom you started to see when you were already in the practice’s employ.”

Another situation in which you should be allowed access to charts: a malpractice suit after you leave related to a patient encounter that took place while you were with the practice. “You should have free access and free copies,” Mr. Hursh notes. “It’s not reasonable for a physician to pay the practice so that his or her attorney can review the charts.”

Ideally, these exceptions should be spelled out in the relevant section of your noncompete clause. At the very least, Mr. Hursh says, make sure there is a provision for negotiating the parameters of confidentiality when you leave the practice.

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