Medical record provisions in physician employment agreements are something physicians should be concerned about. Almost every physician employment agreement will provide that the employer, rather than the employed physician, owns the medical records. This provision is completely reasonable during the term of a physician’s employment. However, many first drafts of physician employment agreements also provide that after the physician leaves, the employer will transfer records at the physician’s expense to a patient that wants to continue to be seen by that physician. As a practical matter, most practices do not charge patients for a copy of their charts – so this is really a punitive provision. I usually attempt to negotiate a provision that patients may request that their medical records be moved at the expense of the patient.
The physician should also be given the right to free access to any medical record necessary to defend the physician against any actual or threatened malpractice action or peer review activity. If possible, I also attempt to negotiate a provision that authorizes free copies of any record useful in any legal action – including a legal action between the physician and the employer.
A related issue in medical record provisions in physician employment agreements is the confidentiality the physician is required to maintain. Medical records are obviously protected by HIPAA and similar state laws. Although it is reasonable to require the physician to treat all medical records as confidential, some physician employment agreements go so far as to prohibit the physician from disclosing any information about the employer without the prior written permission of the employer. In these provisions it is important to allow an exception for any information that the physician is required to disclose pursuant to legal process. I would encourage any physician to sing like the proverbial bird if they are subpoenaed or questioned in any legal process.