Terry, Nicolas P. and Francis, Leslie P., Ensuring the Privacy and Confidentiality of Electronic Health Records (October 12, 2007). University of Illinois Law Review, Vol. 2007, pp. 681-735, 2007
Full-text article available for free download from SSRN: http://ssrn.com/abstract=886904
Abstract:
The federal government is fast-tracking a nationally based interoperable health records system. What may at first glance appear to be merely a technical program in fact would fundamentally alter the relationships between patients, physicians, and potentially other parties such as the government and pharmaceutical companies. It is a program that the President endorses (for example, in his last several State-of-the-Union addresses) and has broad, bipartisan support in Congress. The genesis of the article was separately prepared testimony that we were called to give before the federal government’s advisory National Committee on Vital Statistics. When we testified we realized both how similar our views were and the urgency of articulating solutions more protective of patients. As we note in the article the current administration has framed the privacy-confidentiality issues implicated by a national records system quite narrowly, identifying only divergent state laws as creating barriers to successful implementation of its proposal. In contrast, we believe that some important challenges to patient autonomy and professional responsibilities must be addressed prior to implementation. The article both explores those challenges and makes specific technical and legal recommendations for protecting patients’ medical information.