HIMSS Blog: Get ready for a fight over who owns electronic medical records

In the boom leading up to sequencing of the human genome, genetics and legal experts debated the ownership of the data contained within the double helix. Now, as the U.S. readies for a surge into healthcare IT, a similar debate has broken out over EMRs. The outcome could be critical to making the best use of the huge amount of electronic medical information that the Obama Administration’s stimulus funding will create in the next few years.

The American Recovery and Reinvestment Act of 2009 aims to create an electronic health record for each person in the United States by 2014. But in a commentary published March 25 in the Journal of the American Medical Association (JAMA), Mark A. Hall, professor of law and of public health sciences at Wake Forest University, and Dr. Kevin A. Schulman, professor of medicine and vice chair for business affairs in the Department of Medicine in Duke University School of Medicine, warn that there are no clear "ownership" laws or regulations to govern the massive amount of medical information that could appear over the coming several years, if the Administration succeeds.

Clarifying these rights is critically important if the information contained in EMRs is to be put to the best possible use – to promote medical research and improve patient care. Legal uncertainty about who owns the information "presents a major obstacle to integrating and using information about a single patient from various medical providers," Hall and Schulman wrote in their commentary.

"This impending legal issue must be addressed very soon if we are to both protect patients' interests in their medical information and ensure that new information systems are put to their best uses," they wrote.

The use of electronic health records has been increasing in recent years but these records still are employed by only a small percentage of health care providers. The stimulus bill aims to ramp up EHR deployment exponentially.

Normal property rights do not apply to patients and their medical records, because providers also have a right to the information. Therefore, patients don't have sole possession or control. They only have privacy rights to protect and control access to their records.

When it comes to sharing patients' information among multiple parties – for both healthcare purposes and broader societal uses – conflicting interests arise. In fact, if the "goal of property law is to bundle legal rights in a form that facilitates transactions and maximizes social value," Hall and Schulman wrote, "the current situation is nearly the worst of two worlds. Strong privacy laws (favoring the patient) and clinicians' economic interests in limiting access to health records increase barriers to forming integrated electronic records. This combination of low commercial value with restricted access leaves medical information lying stunted in an undernourished field."

A new system of patient-initiated control of health records could be the key to a successful system, they said, "loosening the logjam of competing interests and stimulating market mechanisms to make much larger investments in using and sharing electronic health information."