Not Your Doctor's Medical Record?

As I prepare to shred box after box of patient files, all those more than ten years old, I contemplate the implications of now using an electronic medical record (EMR) "in the cloud." I wrote here about the impact of EMR on my deposition as a fact witness, but the more I think about it, the more additional potential I see for change.

Consider, for example, medical record law, both statutes like HIPAA and case law. Almost all of that body of law seems to evolve from the fact that until now the professional actually possessed the physical embodiment of the record. So it made sense to ask the professional to produce the record, to keep it secure, perhaps to copy it or allow the patient or a third party to copy it. And now it makes sense for me to destroy the older paper records in my possession.

I no longer possess those records that reside in the cloud as a jumble of bits and bytes on hard drives connected to servers located in one or more locations quite distant from my office. Now I have only the ability to access those records.

If I die or become disabled someone will have to provide for storage of, and control access to, my remaining paper records, but the bulk of active clinical information can remain in the cloud indefinitely. Third parties like my malpractice insurer and the patients themselves will retain an interest in preserving their access to the records. They have no need of me or my agents to control access. Nor should I or my estate have to pay for retention or copying (which with EMR means digital copying).

I believe patients should have full access to their medical records from the beginning, along with the ability to record change requests and disagreements. This access should persist after I have closed shop. The EMR vendor can easily allow read only access to my records while allowing the patient to add to the record as they see fit. But along with rights goes responsibility. The physician should assume no responsibility for any consequence of the patient accessing the record. Furthermore, the malpractice insurer and the courts should have unfettered read only access as well (with the usual safegards), as well as power to veto the patient's request to destroy it.

Cloud based records also promise to remove the physician from the often uncomfortable position of gatekeeper for third parties while the case remains active. With permission from the subscriber payers should  access the record directly to determine whether to authorize reimbursement for drugs, other treatments, and diagnostic procedures, rather than wasting the physician's time with telephone calls and forms. A patient applying for life insurance could likewise authorize access for review by the company. Patients involved in litigation like marital dissolution (divorce), contested custody, personal injury, criminal prosecution and other kinds of cases could authorize direct access by their attorneys and expert witnesses.

Direct access to cloud based records can ease administration of worker's compensation claims. Instead of wading through stacks of paper, independent examiners can access the electronic record directly.

Cloud based EMR as currently implemented offers access from almost anywhere, but the real potential may lie in the ability to offer -- or not -- access to almost any one, indefinitely.