Medical Record Provisions in Physician Employment Agreements

Here are a few things that every physician needs to know about medical record provisions in physician employment agreements.
medical record provisions in physician employment agreements

Medical Record Provisions in Physician Employment Agreements

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 medical record provisions in 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.

You may also be interested in my other posts about “our standard physician employment contract“,  physician productivity compensation and negotiating physician employment agreements.

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Dennis Hursh

Dennis Hursh

Dennis Hursh has been providing healthcare legal services in Pennsylvania since 1982. Since 1992, he has been a physician's lawyer serving as Managing Partner of Physician Agreements Health Law, the first law firm in the country to focus exclusively on physician employment agreements. Dennis has devoted his life to serving physicians and medical practices. He is the author of the definitive book on physician contracts "The Final Hurdle - a Physician's Guide to Negotiating a Fair Employment Agreement, and a frequent lecturer on physician employment agreements.

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    How It Works

    After purchasing the physician contract review, you will receive an email asking you to transmit the agreement and any concerns you have to me. Many physicians do this by email, but I will be available by phone, too. In three business days from the time you purchase the Physician Prosperity Program® and transmit the draft physician employment agreement along with any concerns you have about the agreement and the information I will need to perform the MGMA analysis, you will receive a detailed physician contract review letter from me.

    After you receive my physician contract review letter, you will have the opportunity to discuss it with me, to make sure all of your concerns were met, and to correct any factual inaccuracies, or to point out things that were verbally promised but didn’t make it into the physician employment agreement. These discussions, and revisions of the letter following these discussions, are included in the initial fixed fee.

    Once you are completely comfortable with the physician contract review letter, you transmit the letter to your potential employer.