Last Updated: Jun 17, 2021
By Andrew C. Harvan, Esq., PAMED’s Assistant Legal Counsel
The Pennsylvania Medical Society (PAMED) often receives questions regarding the disposition of medical records from member physicians. This overview offers guidance on retention requirements and record ownership, disposition of medical records when a physician retires, and what to do with medical records when a physician passes away.
Retention Requirements & Record Ownership
Medical records must be retained in compliance with Pennsylvania law regardless of whether the physician, who created the records, retires, passes away, or closes their practice.
In Pennsylvania, physicians must retain an adult patient’s medical records for at least seven years from the last date of service. Requirements differ slightly for minor patients. The State Board of Medicine requires MDs to retain a minor patient’s medical records for at least seven years after the last date of service or one year after the patient’s eighteenth birthday, whichever is longer. The State Board of Osteopathic Medicine requires DOs to retain a minor patient’s medical records for at least seven years after the last date of service or two years after the patient’s eighteenth birthday, again whichever is longer. More information from PAMED on medical record retention can be found here.
The physician or practice that maintains the medical records are generally considered the owner(s) of the records. However, in a hospital setting, a patient's medical records are owned by the hospital. Nevertheless, although patients do not own their medical records per se, patients do have a right to view and copy their records at their request.
Disposition of Records if a Physician Retires
Written notice of a physician’s impending retirement should be provided to all of the retiring physician’s patients. This notice should include the date of the physician’s retirement and information on how patients can obtain copies of their medical records or authorize transfer of their records to a new physician.
If the retiring physician was part of a group practice, the group may retain the physician’s records. However, the practice must provide patients with copies of their records or have records transferred to a patient’s newly chosen physician upon a patient’s request for such.
If the retiring physician was a solo practitioner, the physician may choose to safely store the records themselves. However, if the physician has sold their practice or patient records will be stored by another practice, hospital, or other custodian, this information should also be provided to patients. Patients must be informed on the location of and how they can access their records.
Disposition of Records if a Physician Passes Away
Questions often arise as to what to do with the medical records of a deceased solo practitioner physician. If the physician worked in a hospital setting or was part of a group practice, the hospital or group usually retains the records.
Prior to death, a solo practitioner may make arrangements for the retention of patient records. If the physician left a will, the Executor of the physician’s estate will be responsible for fulfilling these arrangements. The physician may direct that custody of patient records be transferred to a local hospital or another physician.
If the physician left a will with no directions on record retention, the Executor of the physician’s estate will be responsible for preserving patient records. If the physician left no will, the local probate court will appoint an Administrator to settle the physician’s estate. The Administrator will then be responsible for preserving patient records. In both of these situations, the Executor or Administrator will need to find another physician, provider, practice, hospital, or other custodian to properly retain the patient records or they will need to make arrangements to adequately store the records themselves.
Storage of medical records may be transferred to a commercial custodian. There are numerous commercial storage firms that specialize in the custodianship of patient records. A custodianship agreement for retaining the records will need to be entered into before any such transfer of records occurs. This agreement must guarantee access to the records by the physician’s former patients and these patients’ newly chosen physicians. Medical record custodians are required to comply with all relevant state and federal laws regarding the confidentiality, retention, disclosure, and disposal of medical records. Note that there are typically fees associated with commercial custodianship. Also, if a custodianship agreement is entered into, notice should be provided to patients as to where they can locate and how they can access their records.
Where Can I Find More Information?
For information on this topic and much more, visit PAMED’s Legal Resource Center at www.pamedsoc.org/LegalResourceCenter. PAMED's Legal Resource Center provides quality, timely legal advocacy and resources for member physicians. Additional legal information from PAMED on medical records can be found at www.pamedsoc.org/medicalrecords.
PAMED’s Quick Consult on “Retention and Disposal of Medical Records” details legal requirements regarding the content, alteration, retention, and disposal of medical records.
PAMED members with questions can also contact our Knowledge Center at 855-PAMED4U (855-726-3348) or KnowledgeCenter@pamedsoc.org.