By George Fallar Nearly everybody agrees that interconnected electronic medical record (EMR) or electronic health record (EHR) systems will eventually bring new efficiencies and, hopefully, reduced costs to the health care system worldwide. The privacy concerns of the public are a legitimate roadblock that needs to be addressed completely before action plans are put into effect.
A confusing stab at resolving health record privacy was made in the mid 90’s (amended in 2003) with the Health Information Portability Accountability Act (HIPAA). The act was intended to codify how anything related to the privacy and security of patient information was supposed to be handled. It also addresses the remedies available to patients whose records were not shared correctly or contained errors.
Implementation of HIPAA laws has been spotty and unwieldy. Health care facilities, insurers and individual providers have wildly varying interpretions of what ‘HIPAA compliant’ means. The end result has been nearly universal non-compliance with the spirit of the law and sporadic compliance with the letter of the law. Electronic medical records systems are, by their very nature, generally MORE compliant that traditional paper charting systems. Ask youself is it easier to grab a paper chart from the front desk of a typical doctor’s office or to hack into a computer system? Any four year old could grab a folder.
The above digression is only introduction to liability concerns. Other than thorny economic issues, much of the current sturm and drang associated with proposed health care reform revolves around, essentially, the same privacy concerns that were supposedly resolved years ago with HIPAA. Being in the electronic medical records business, it’s part of my job description to monitor at least major moves and talks affecting our business. The one discussion I haven’t seen raised, and it’s possible I have simply missed it, is resolution of liability for medical record accuracy.
It’s no secret that the average United States citizen is a litigious beast, nor is it a secret that there is a surfeit of litigators champing at the bit for a big payoff. The malpractice business is a huge one, with (depending on where you get facts) the cost of medical malpractice litigation increasing at nearly 12 percent per annum since 1975. Without tort reform, there is no reason to believe that these costs will not continue to increase at a similar rate into the future.
Criticism of the current malpractice debacle isn’t the purpose of this rant, however. My concern is that part of the foundation of nearly every proposal for nationally ‘electronifying’ medical records includes patients personally modifying and, in some cases, maintaining their own medical records through web based systems. Google (Google Health) and Microsoft (HealthVault) are two of the big players with this philosophy. Now, since my company markets a web based electronic medical records system, it isn’t the ‘web based’ component that concerns me. I am quite certain that any privacy and security issues can be resolved using existing technology and techniques in everyday use. The thing that I have never seen addressed is, who will ‘own’ the liability for any potential medical ‘breach of duty’ and/or injury caused by said breach if medical decisions were made based on inaccurate data NOT under the control of the provider being accused of malpractice.
The incentives proposed under ARRA (American Recovery and Reinvestment Act of 2009) for providers moving to electronic medical records are chump change compared to their potential increased malpractice exposure UNLESS they verify every bit of data within the composite electronic chart. How will they do this without ordering yet more tests and spending even more diagnostic time with the patient? My contention is that they will not be able to, and thus will continue to resist the move to EMR/EHR regardless of the financial incentives available to them.
If, however, at least some of the responsibility for the accuracy of personal electronic medical records could be more squarely placed upon the patient, we could make great strides towards the goal of eliminating paper charts. Until that issue is resolved, and until the usability of electronic medical records systems (so using them daily consumes LESS time than paper) becomes part of any federal certification process; health care providers will rightly refuse to give up their paper charts.
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