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EMR Implementation & HITECH Act Blog

A blog for doctors and medical office staff seeking assistance with EMR and the HITECH Act.

04/12
2010

EMRs Pose New Questions About The Privacy Of And Access To Medical Records

You know those rows and rows of medical records sitting in your file cabinets?† Who owns them?† Do you, as the health care provider who created those records own them?† How about the health insurance company that paid you for that work?† Or the patients, whose private health information those records contain?

Attorneys Mark Hall and Kevin Schulman, writing in a commentary in the March 25th edition of the Journal of the American Medical Association (JAMA), contend that it used to be fairly clear cut ñ the health care provider and the insurance company own paper records and the patient has the right to see and correct them.

Issues of ownership of and the rights to access medical records are shaped by four separate legal realms ñ property, tort, contract and regulatory.† Depending on the lay of the legal land and the set of facts in a given case, according to Hall and Schulman, any or all of the four areas could affect ownership and access rights.

But digital records are not dependent on one physical medium ñ paper ñ for their existence, and that changes much of the law that governs their ownership and distribution.† The fact that digitizing information frees it from dependence on a particular medium (paper) leads to even greater confusion about who owns medical records and who has the right to control access to them. † ìThis impending legal issue must be addressed very soon if we are to both protect patientsí interests in their medical information and ensure that new information systems are put to their best use,î they conclude.

Let’s say you have an office in Massachusetts, and a doctor calls you from an ER in Ohio asking for one of your patient’s medical records.† What state rules should you follow in determining what you can send and to whom?† While interoperability may allow you to easily zap medical records wherever they are needed, they may also subject you to privacy and access laws at the state, federal or even international levels. † How do you know what you are allowed to do?

Other aspects of ownership and access may relate to the form of EMR you implement. † Some health care providers choose to minimize up-front costs by using an EMR provided by a third party vendor or software as a service (cloud computing).† According to OrthoSupersite, a website dedicated to orthopedic professionals, the vendor could own your data, since it would be residing on its hard drives and servers.† Yes, they would probably have to grant you access, but do you really want to get into that battle?

And, as we pointed out in a recent article about financing your EMR purchases, there may be financial circumstances that give an outside vendor control of your electronic patient data.† As more and more data is stored electronically, and can thus easily be sorted, organized and ìminedî by insurers, pharmaceutical companies and government entities, there will be increasing pressure on providers to make patient data available to them for research or more commercial purposes.

Until the questions about who owns and has the right to control access to electronic medical records are resolved, this uncertainty threatens to be both a full-employment act for privacy and rights lawyers and an 800-pound gorilla in the file room.† As new precedents are set and court decisions are made ñ and there will be courts involved at some point ñ we’ll keep you posted on what they could mean to you.

Rich Silverman
PC Healthstop Blogging Team

Public Domain Image courtesy of Wikimedia Commons