Who “owns” a shared medical chart?

The question of who “owns” the information in a medical record has become a little fuzzier with the development of new technologies that allow clinical chart sharing between medical practitioners, and with sharing of that chart with patients.

One of the guiding legal principles concerning medical records is that they are the property of those who prepare them (medical professionals), and not the property of those about whom they are concerned (patients). Patients, however, have a privacy right around the information contained in the records, and have a right to review them, demand copies of them, and demand their confidentiality (i.e., prohibit release of information contained in them, with limited and specific exceptions). HIPAA Privacy Laws codify the privacy and safekeeping of these records, and obligate HIPAA-covered entities (e.g. physicians) to ensure such privacy, as well as specify what must be done in case such security is breached.

In a paper-based environment, carrying out this principle of medical records ownership is fairly straightforward. A physician makes chart entries, creating a medico-legal document about the advice given and procedures done during a patient encounter. The chart “belongs” to the physician, though copies can be made available to patients, or copies can be sent/faxed to other physicians involved in the care of that patient. The copies are not the original (the “creating” physician, as custodian of records, has an obligation to maintain the original for a specified minimal time frame) – however, once a copy is sent to other parties, then that copy becomes part of the recipient’s record and the originator is no longer responsible for its external safekeeping.

In the event that the HIPAA Covered Entity (CE) is a hospital, then the hospital “owns” that chart, though medical professionals affiliated with that hospital (e.g. the medical staff, which is a closed organization, or the nursing staff, who are employees of the hospital) make entries. This is an example of chart sharing among physicians within a defined system – however, a patient’s chart within a given hospital (Hospital A) is not shared with that same patient’s chart from outside the hospital (Hospital B, or an ambulatory physician’s practice), and copies from those outside sources need to be requested in order to become part of the hospital’s record.

Similarly, medical groups – even large ones – can be a HIPAA Covered Entity, and can have a shared chart within that group. Ambulatory group practices function this way. Even the Permanente Medical Group (the Kaiser system) functions this way – a chart is “owned” by the group, shared among members of the group, but only copies can be requested and sent to outside CE’s upon granting of permission.

New technology, such as Practice Fusion’s clinical chart-sharing capability, are challenging these traditional boundaries. Multiple, distinct and separate medical practices (different CE’s), who all have a patient-care reason for accessing that chart, can review, share, and make entries onto a single patient’s chart – the “one patient, one chart” goal of health interoperability envisioned by the Office of the National Coordinator (ONC) for Health IT. So, who “owns” the patient’s chart in this setting?

The Practice Fusion approach to this question is that each chart note entry is the property of the medical practice that created it. Of course, only CE’s that have a direct patient-care need can have access to a given chart in the first place, but view-only of other practitioner’s chart notes is available to all who participate in the shared chart. In effect, one has add/edit abilities to one’s “own” chart note (one’s “own” original record), and has view-only access to notes created (and “owned” by) others – one is looking at a copy (granted, it is real-time), and can print it out and use it just like if it were a paper copy in a more traditional setting.

What about when elements of this shared-chart data are made available to a patient through a PHR or a patient portal? Practice Fusion recently launched Patient Fusion, which gives patients the ability to see elements of their physician’s Practice Fusion EHR charts. In its initial release, Patient Fusion only shows limited items (appointment dates, diagnoses, medications, immunizations), and is not yet the full-fledged PHR that is envisioned through successive upcoming releases – something not only closely connected to the EHR, allowing dialog between the patient and the physician(s), but also with capabilities independent of the EHR, where patients can electively enter or access information themselves.

Again, the same principles can apply here – chart note entries exposed to others (e.g. the patient) “belong” to the creator of that chart note. However, the view of the chart note is like a copy of a paper records, and can be used by the viewer in whatever way desired – the patient can print out the chart entry view in the PHR and use it at-will. Similarly, entries (eventually) made by the patient is his/her own PHR record “belong” to the patient, and are separate entries from those made by practitioners (though they can be referenced).

Modern technology, like that pioneered by Practice Fusion – where a given chart can be shared outside the confines of a given medical group or hospital, and across the boundaries of separate CE’s – are pushing the envelope of medical record “ownership.” Practice Fusion has been careful and deliberate as it explores the use of these technologies, consulting with highly expert HIPAA legal counsel in the process. The benefits to health care that result from such carefully-appropriate medical record sharing are part of the national vision of health information interoperability, and represent the potential for dramatic breakthroughs in the quality and efficiency of health care delivery.

Robert Rowley, MD – Chief Medical Officer, Practice Fusion, Inc.