Determining who owns medical records in the age of electronic health records remains somewhat ambiguous. In fact, recent issues at the University of Rochester Medical Center highlight the confusion as the health provider recently reached settlement over a violation of protected health information because a nurse practitioner took patient information to a new practice. Thus, the relevant question is whether the provider, the physician, the electronic health record provider, or the patient own the information?
Many patients assume the Health Insurance Portability and Accountability Act (HIPAA) provides ownership of health information to the patient, but the law, in fact, fails to specify. Largely, this issue is left to state legislatures to determine, but the majority of states have failed to address the issue. According to a recent survey by the George Washington University’s Hirsh Health Law and Policy Program and the Robert Wood Johnson Foundation, only New Hampshire provides ownership of medical records to the patient, while in 20 other states, the healthcare provider owns them.
In the age of electronic health records, patient data is quickly shareable between physicians, patients, and other individuals. This poses new legal challenges for healthcare providers and physicians, especially as the laws and regulations on protected health information continue to evolve and state attorneys general start to enforce the privacy laws under the Health Information Technology for Economic and Clinical Health Act. This means that physicians and healthcare providers of all types should ensure that their internal policies on health records fully comply with the evolving legal landscape.
© 2015 Houghton Vandenack Williams
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