Provided by: Jennifer Kirschenbaum, Esq.
November 2, 2021
A doctor who worked for us had closed his private practice and stored paper patient records related to his private practice in our facility. After he left us, he continued to keep these charts with us and refuses to pick them up. As we are contemplating sale of our practice and facility, we do not want to assume the burden of shredding and disposing such records, Short of suing him, can we report him to the NYS regulatory agencies for his failure after adequate warning to him?
So, this is an interesting framing of a custodial obligation. From the fact pattern I'm assuming the doctor you mention who was employed, separately had a private practice, and separately used the site as a storage facility, presumably without any contract in place. So, a number of key missteps here.... If the above assumptions are correct, then at the time the records were moved to your practice, there should have been a rental agreement for the space and language that custodianship rested with the leasing doctor, and if the practice were to be helping with custodianship obligations or have access or otherwise, best practices would dictate use of a business associate agreement in place as well. Here, it sounds like no contracts are involved. So what we have is a doctor who has abandoned his custodial obligations. However, the practice has also accepted physical possession without proper contracts/definition of responsibility. Tough call... I see the abandonment element.
Happy to talk through further, but as you can see, the answer may fall in a gray area....