SHARING MEDICAL RECORDS

Much has been written in the last few years about the intellectual crime of electronic health records in proprietary formats preventing the easy technical sharing of medical information.  Hopefully, through the efforts of the market place, and even regulators and Congress, these technical issues will be resolved by forcing the now closed systems to reformat to a shareable common technical standard.

However, there is more to sharing digital medical records than the technical barriers.  Let’s assume for the moment that a magic wand is waved, and that all EHR/digital medical records now have the possibility of being shared in a useable, readable and timely format.  In this new world, the question then becomes your practice or hospital’s procedures before hitting the ‘send’ button of your patients’ medical records with another doctor, clinic or hospital.

Some of the legal issues can be addressed simply by modifying your consent forms to specifically provide the patients agreement to sharing their digital medical records upon request.  Or should that be upon appropriate request?

How do you determine when an electronically received request for a patients’ record is genuine and appropriate?  What rules of the electronic road do you have in place for deciding whether a request for EHR is genuine and appropriate?  In a local geographic area, it is somewhat easier for various hospitals and practices to agree upon a set of common rules before having the ability to send or request EHR.  While it may be easier, my discussions with various hospitals and clinics show that very little has yet been done in this area.

For long distance requests, how does someone in Southern Indiana or Western Kentucky respond to a request from a hospital in Portland, Oregon or Rochester, Minnesota?

Much remains to be done for achieving true interoperability or transmission of EHR, and first all of the interested parties need to come together and agree on access and use issues such as what purposes the information can be used for, who can access the transmitted information, will reports be made to patients to inform them of requests and transmission for EHR and similar matters.

HEALTHCARE PRICE TAGS

How would healthcare change if patients could know the price of everything from an office visit to a c-section to a bone density study?  Currently, healthcare is one of the few goods and services where consumers buy blind without knowing the ultimate price, nor their required contribution to that price if they are insured.

Massachusetts, as of October 1, requires that health insurers make this once unknown information available.  The Massachusetts law is not particular strong, it lacks standardization, there is no requirement that prices remain accurate for any particularly length of time, and it is not accompanied by much quality information.

But it is a start.  We have begun to assemble quality information throughout the United States healthcare system, we have begun the process of transparency for drug company payments to physicians and hospitals and we are on the first steps of beginning to add price data.  Price data is critical not only to let patients actually compare quality and prices before choosing their provider, it also adds competition for providers (which has  been, since my school days, taught as a great benefit to our economy), but it also provides predictability.

Predictability allows consumers and businesses to begin assigning real costs and benefits to their healthcare decisions.

PATIENT SAFETY ACT PRIVILEGE

Recent cases continue the development of issues regarding privilege and confidentiality protections for data and reports created under the Patient Safety and Quality Improvement Act of 2005 (Patient Safety Act).  Recent cases in Florida and Kentucky looked at situations where plaintiffs in lawsuits sought adverse incident documents which may have been created as a result of the Patient Safety Act.  In each case, the defendants claimed that reports requested were privileged and confidential work product.

The Florida court noted that under the Patient Safety Act, certain categories of information are expressly excluded from being patient safety work product, including information collected, maintained or developed separately, or that exists separately from a safety evaluation system.  The court looked to Florida state requirements for hospital risk management, staff licensing, and reports that were required to be submitted to the state under state laws.

The Kentucky Supreme Court also noted Kentucky’s requirements for administrative reports as part of the hospital’s regular course of business.  It found that information that is developed, maintained or collected separately, or exists separately from a patient safety evaluation system created under the Patient Safety Act is discoverable.

The availability of the privilege and confidentiality available under the Patient Safety Act may depend upon how the incident reporting system is constructed by the hospital, and whether information appears to have been created separately or outside of that PSO created under the Patient Safety Act.  The procedure/policy guide used by the hospital in connection in this report may be determinative in court’s decision over whether the information will or will not be produced.  For example, if the policy and procedures allow access by persons not directly in the PSO reporting chain or allow the information to be summarized and used by committees, researchers or others not directly involved in patient safety reporting, this may also lead to a court order allowing discovery.

This issue is not finally settled since these cases which did not arise until after the 2009 of publication of final regulations under the Patient Safety Act.  Until the appellate courts developed further opinions on this matter, hospitals may want to very carefully limit creation or distribution of information from their PSO systems.

This newsletter is edited by Paul Wallace of Jones ∙ Wallace, LLC, a member of the American Bar Association Healthcare Law Section and the American Health Lawyers Association who has been representing physicians and healthcare practices for over 25 years.  Mr. Wallace assists physicians in health practices in contract items, federal legal compliance, creation of practice entities, estate and wealth planning and similar issues.  Please feel free to call if you have any questions on this newsletter or legal matters at (812) 402-1600 or pwallace@joneswallace.com.