Who Owns the Medical Record?

Although the medical record contains patient information, the physical documents belong to the physician. Indeed, the medical record is a tool created by the physician to support patient care and is an asset of the practice. When a physician leaves a multiple-physician setting, the question often arises, "Which physician owns which record?"

Unfortunately, there is no single answer because ownership often depends on specific facts.  Ideally, to avoid any ambiguity over medical records ownership, the physicians should agree about ownership "up-front," before entering into the group arrangement. Otherwise, the parties may have to rely upon general Texas business law, and such disagreements may turn nasty and costly.

Generally under Texas business law, the work product of an employee belongs to the employer. Thus, in a setting where a physician employs another physician, absent a prior agreement, the employee physician actually may not own any of the records for his or her patients - the employer physician owns them.  Despite this, Texas Medical Board regulations require practices to give departing physicians the information necessary to send notice letters to the patients the physician has seen in the previous two years.

In a partnership situation, the law generally holds that property brought into and acquired in partnership become "partnership property." Upon dissolution of a physician partnership, if there is no prior agreement, who owns which record may depend on the circumstances surrounding the dissolution. For example, one partner may continue to use partnership assets if he or she did not cause the dissolution  and pays the departing partner the value of his interest, including the medical records.

When physicians, each in private practice, share office space, no legal combination actually takes place. The physicians own their records separately.

TMA's associate general counsel Lee Spangler, JD, says, "It is best to agree on who owns the records before a dispute develops. When things are starting out, everyone  is excited to be embarking on the new enterprise and is much more open to agreement on contentious issues. That is when it is easiest to reach an accord. When a practice is breaking up or a physician is departing, it will be much more difficult to come to an agreement."

Be sure to consult an attorney regarding an agreement or dispute about medical records. If you have questions, e-mail the  TMA Knowledge Center  or call (800) 880-7955.

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