Who Owns the Medical Record?

Special Managed Care Bulletin

Hi, everybody. Just a quick note with some important information.

In my managed care e-mail bulletin #4 from late 1998 one of the issues I mentioned was ownership of medical records. It's an issue that continues to spark interesting dialogue among health care professionals and attorneys, particularly as we inevitably move toward computerized patient records and the instantaneous transfer of data.

Here's something new I just read that I think you'll find interesting. It's worth a few minutes of your time.

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Whose record is it anyway?

Once upon a time, physicians were secure in the notion that they owned their medical records.

After all, they bought the forms, filled in the information and assumed the responsibility of maintaining and protecting the documents.

That sense of ownership was comforting because owning the medical records was nearly synonymous with "owning" or controlling the patients.

But physicians were relatively autonomous in those simpler times. Their medical records were primarily for them -- to help provide care, track patients and make referrals. The records also helped physicians protect themselves when problems arose.

But since managed care, integrated services, cost-cutting and quality control have become the modus operandi of medicine, the issue of who owns the record is no longer so simple.

A growing number of entities are staking increasingly aggressive claims to medical records. This includes not only hospitals, medical groups and health care networks, but also managed care companies, health plans, employers, quality controllers, regulators, investigators, drugmakers, pharmaceutical benefits managers, disease management firms and empowered patients.

Is that sick person you just cared for your patient, the managed care company's member, the payer's beneficiary, the employer's employee or the health plan's enrollee?

Easy access leads to more sharing

The gradual but irrevocable conversion to electronic medical records is making it feasible for more parties to claim a piece of the record.

They are doing this in myriad ways, such as establishing new communitywide information systems, providing third-party billing and record services, and giving physicians hardware and software that links them to larger networks. Others buy the data or companies that generate it.

Now that medical records are less likely to be paper-based, sharing rather than owning records is becoming the norm. Already, some records in physician offices are just working copies of electronic master files created, maintained and owned by someone else.

And as more physicians are employed, fewer will own records. All this distances physicians from their patients and makes it harder for them to hang on to their patients.

Physicians can fight back, to an extent. The most important thing is to pay attention to what contracts say about medical records.

Some spell out that the hospital or network owns the records of contracting physicians. Others stipulate that the group and not the physician owns the records. Still other contracts are vague, saying that the billing service owns all "hardware and software," which could be construed to include the data.

Such contract provisions must be clarified. Often they can be negotiated or challenged.

Recently, Aetna proposed physician contracts that would have required doctors to share "ownership" of their medical records with the insurer. Aetna U.S. Healthcare, which plans to merge with Prudential HealthCare to form the nation's largest health insurer, is building a massive data base of patient information.

After being pressured by physicians and the AMA, however, Aetna conceded that joint ownership would jeopardize the physician-patient relationship and violate patient confidentiality laws, according to an attorney who helped negotiate a new physician contract.

Aetna would not discuss the matter, except to say that its physician contracts now include a milder guarantee of "access" to medical records.

Another step physicians can take is to master electronic records -- how they work, and how they can work for you.

Finally, remember that patients may be your best ally in this struggle for control of records in the information age.

Patients have the strongest claim to the medical record, since it's all about them.

Eventually, the record will evolve into a longitudinal one that bridges the fractured health care system as patients traverse the provider landscape over the course of their lifetimes. Therefore, patients will have more say about their records, especially as Internet-based tools allow them to create, track and edit information about themselves in virtual records.

Years ago, the first chink in the notion that physicians own their medical records occurred when a significant number of patients began requesting copies of their records, most often to share with other doctors but increasingly as a way to check up on the care they were receiving.

Resenting such requests, some physicians complied slowly or not at all. This created a rift with patients and led to a raft of state laws requiring doctors to share records with patients. Some of those laws went as far as to say that patients own their records and physicians just have a right to use the information in them.

Study these and other applicable laws, but don't look to the patchwork of inconsistent laws, which vary tremendously from state to state, for a clear answer to who owns the record.

One lawyer will tell you that you own it as a business record. Another will say that whoever creates it owns it. Another will talk about dual ownership with the patient. Still another will say that the fact you can sell your records with your practice is proof that you own them. Yet other lawyers will tell you that each of these answers is wrong, depending on the state and circumstances. Clearly, the legal concept of ownership is too blunt an instrument for handling records.

A better approach is to side with patients on this issue. To start with, don't buy or sell information derived from medical records. Guard patient confidentiality. Share information only with a patient's approval and then only on a need-to-know basis for the limited, applicable period.

In addition, help patients understand and control what goes into their records. Advocate for patients. Stand up for their rights in the face of those who will demand more data and more access.

Why? Because the paper-based medical record is evolving into the computer-based patient record. Ultimately, it's their record.

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