CHAPTER 353

FORMERLY

HOUSE SUBSTITUTE NO. 1 FOR

HOUSE BILL NO. 236

AS AMENDED BY

SENATE AMENDMENT NO. 2

AN ACT TO AMEND TITLE 24 OF THE DELAWARE CODE RELATING TO MEDICAL PRACTICE ACT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Title 24 of the Delaware Code by deleting the existing § 1761 and replacing thereto as follows:

Ҥ 1761. Physician discontinuing business or leaving the State; death of a physician; change of physician and transfer of patient records; patient access to records.

(a) A person certified to practice medicine under this Chapter who is discontinuing a medical-practice business in this State or who is leaving this State and who is not transferring patient records to another person certified to practice medicine shall notify that person's patients of record by publishing a notice to that effect in a newspaper of daily circulation in the area where the person practices. The notice must be published at least (one) 1 time per month over a three (3)-month period in advance of discontinuing the business or leaving the State and must explain how a patient can procure that patient's patient records. All patients of record who have not requested their records 30 days before the person discontinues the medical-practice business or leaves the State must be notified by first class mail by the person to permit that person's patients to procure their records. Any patient records that have not been procured within seven (7) years after the person discontinues business or leaves the State may be permanently disposed of in a manner that ensures confidentiality of the records.

(b) If a person certified to practice medicine under this Chapter dies and has not transferred patient records to another person certified to practice medicine and has not made provisions for a transfer of patient records to occur upon the person's death, a personal representative of the person's estate shall notify the person's patients of record by publishing a notice to that effect in a newspaper of daily circulation in the area where the person practiced. The notice must be published at least one (1) time per month over a three (3)-month period after the person's death and must explain how a former patient can procure the patient's patient records. All former patients who have not requested their records 30 days after such publication must be notified by first class mail by the personal representative of the estate to permit the patients to procure their records. Any patient records that have not been procured within seven (7) years after the death of the person may be permanently disposed of in a manner that ensures confidentiality of the records.

(c) If a patient changes from the care of one (1) person certified to practice medicine to another person certified to practice medicine, the former person shall transfer a copy of the records of the patient to the current person upon the request of either the current person or the patient. The former person may charge for the reasonable expenses of copying the patient's records, according to a payment schedule established by the Board of Medical Practice. The actual cost of postage or shipping may also be charged if the records are mailed. Alternatively, if the patient and current person agree, the former person may forward to the current person a summary of the patient's record, in lieu of transferring the entire record, at no charge to the patient. If a patient changes care from one person certified to practice medicine to another and fails to notify the former person, or leaves the care of the former person for a period of seven (7) years from the last entry date on the patient's record and fails to notify the former person, or fails to request the transfer of records to the current person, then the former person shall maintain the patient's records for a period of seven (7) years from the last entry date in the patient's medical record, after which time the records may be permanently disposed of in a manner that insures confidentiality of the records.

(d) Patients, on their own behalf, shall have the right to obtain a copy of their medical records from any person certified to practice medicine according to a payment schedule established by the Board of Medical Practice. The actual cost of postage or shipping may also be charged if the records are mailed.

(e) This Section does not apply to a person certified to practice medicine who has seen or treated a patient on referral from another person certified to practice medicine and who has provided a copy of the record of the diagnosis and/or treatment to the other person, or to a hospital or an agency which has provided treatment for the patient.

(f) A person certified to practice medicine or the personal representative of the estate of such person who disposes of patient records in accordance with the provisions of this Section is not liable for any direct or indirect loss suffered as a result of the disposal of a patient's records.

(g) Any person certified to practice medicine in this State who violates this Section may be found by the Board to have committed unprofessional conduct, and any aggrieved patient or the patient’s personal representative may bring a civil action for damages or injunctive relief, or both, against the violator.

(h) Charges for copies of such records not susceptible to photostatic reproduction, such as radiology films, models, photographs or fetal monitoring strips shall be the full cost of such reproduction.

(i) Payment of all costs may be required by the provider or its third party release-of-information service prior to the copies of the records being furnished. This subsection shall not apply to copies of the records requested in order to make or complete an application for a disability benefits program.

(j) The Board of Medical Practice shall review fees yearly.

(k) The actual cost of shipping may also be charged if the copies of the records are mailed or shipped to the requester.

(l) A person certified to practice medicine shall have 45 days from the closure of the record or the assembly of a complete record to fulfill a request for medical records unless a faster response is medically necessary.”.

Approved July 16, 2008