Ownership of EHRs poses barrier to adoption

By Molly Merrill
10:17 AM

The issue around ownership of electronic health information must be addressed before it can be used to improve healthcare, says a recent article in the Journal of the American Medical Association.

"This legal uncertainty presents a major obstacle to integrating and using information about a single patient from various clinicians and hospitals," say the article's authors,  Mark A. Hall, a professor of law and public health sciences at Wake Forest University and Kevin A. Schulman, MD, a professor of medicine and vice chairman for business affairs in the Department of Medicine in Duke University's School of Medicine.

Hall and Schulman point out that with paper records the concept of ownership is more straightforward: providers and insurance plans own the paper, so they control the information. "But now that digitizing information frees it  from particular storage media, confusion reigns," they said.

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

 "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, " wrote Schulman and Hall.

The article says the "infomediary" to build the network among different EHRs would need clear authority to bundle and exercise the economic rights of multiple parties.

 "An intermediary could compile a bundle of patients' authorizations to use their information for research or marketing purposes; the compiler could, with patient authorization, then market these databases to permitted users or could transfer the bundled rights to a third party aggregator and marketer," the article states.

"Some earnings could flow back to patients or compensate participating clinicians. In this way, placing bundled rights to medical information into a stream of commerce could direct them toward their highest and best use," the authors suggest.

The article maintains that a new system of patient-initiated control of health records could be the key to a successful system. Such a system could "loosen the logjam of competing interests and stimulate market mechanisms to make much larger investments in using and sharing electronic health information."