Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Nicholas Parsons
Nicholas Parson is a sophomore at the University of Pennsylvania studying Politics, Philosophy, and Economics (PPE).
Our innovations and understanding of the world is constantly growing and improving. In the healthcare industry, we have made leaps and bounds in how we understand ourselves. In recent decades, there have been vast developments in the understanding of the human genome, in the control of previously irrepressible diseases, and in such incredible accomplishments as bionic limbs and the growing of organs. In such cases of marked improvement, we can only hope that policy will grow to accommodate for these developments. However, many legal roadblocks still exist which pose challenges to quality and expediency of care. One of these issues lies in transfers of patients’ medical information from facility to facility.
Many situations can necessitate a transfer of medical information from one medical establishment to another, including but not limited to: a change of insurance, a different location of residency, or a general unhappiness with one’s current care provider. Depending on the direness of the situation, it can be vital that the medical records are transferred quickly. Given that we live in an increasingly computerized age, these records ideally could be sent immediately. However, the reality of the situation is far more complex.
As an ironic consequence of using computerized information, the transference of health information is an unintuitively long and sometimes tedious process. Due to security concerns, such as fear of breaches in private medical records, and due to the fact that some doctors don’t use Electronic Medical Records (EMRs) or use them to a limited degree, the process can be a dubious one.  According to the Health Insurance Portability and Accountability Act (HIPAA), when an individual asks that their health records be transferred from one healthcare facility to another, the establishment has up to thirty days to comply. And, after those thirty days, they are allowed to apply for another thirty days, for a total of a sixty day maximum. Although these facilities are strongly urged to make the transference of medical records as expedient as possible, this act allows a large wait time.
For some patients, this has real and daunting implications. In the opening remarks of the White House’s “Frontiers Conference”, Zoë Keating, a patient advocate who recently lost her husband to cancer, spoke of her qualms with the current state of our healthcare system. “Cancer is a really complex disease, and so [my husband] was being treated in multiple institutions… I had to drive a hundred miles... sometimes a couple times a week just to deliver the discs because the institutions wouldn’t share data.”  Since medical establishments have thirty days to release medical records, and because they will not quickly and directly send this medical information to other health service providers, these facilities are operating well within their rights, but at the cost of their patients’ quality of collective care.
In addition to the lengthy time maximum, HIPAA also lays out exceptions to what would be deemed a “medical record”. According to the act, health facilities may exclude information from a record set if “the information is not used to make decisions about individuals.”  This broad definition leaves room for interpretation, and in some instances this has caused dispute. In Ohio, for instance, in a court case regarding the late daughter of a patient at Aultman Hospital, Gene’a Griffith claimed that the hospital did not release all of her father’s medical records upon request. The omitted records, according to Griffith, included “cardiac-rhythm monitoring strips and nursing records.”  In March of 2016, the Ohio Supreme Court ruled in favor of the plaintiff, expanding the state’s definition of medical records. They stated that a record “is not limited to the information maintained by a hospital or other healthcare provider’s medical records department.”  This case only applied to Ohio law, and while other states have made similar rulings, the case accentuates the issue that some pertinent medical information can indeed be withheld, thereby making the obtaining and transferring of that information even more challenging for patients and their families.
Additionally, Electronic Medical Records are not yet in use across the board. As of September of 2015, approximately one in five doctors still do not utilize EMRs, and roughly one half of doctors only use very basic functionality of their electronic systems.  Despite our increasingly technological age, antiquated systems still persist. This fact, combined with the language of the HIPAA, cause unfortunate and disparaging instances of care issues.
Once our doctors and hospitals finish converting to EMRs, ideally these institutions will be able to share their medical records more quickly and openly, while maintaining the privacy of their patients. In the future, the sharing of medical records could conceivably include a vast, secure online database of which all institutions could access at any point in time, allowing for real-time updates of patient information without the hassle of requesting the information and manually transferring it to other facilities. For now, however, our current policies and technology does not support such a system. 
In the words of Zoë Keating, “We have Star Wars medicine in a Flintstone system.” Our policies accompany an antiquated system in an increasingly technological world. And although hospitals are slowly becoming more technologically adept, there is still an alarming capacity for error or malignancy in the transference of necessary medical information. Until our policies change, this room for error will likely remain.
 Gamble, Molly. "5 Legal Issues Surrounding Electronic Medical Records." 5 Legal Issues Surrounding Electronic Medical Records. http://www.beckershospitalreview.com/legal-regulatory-issues/5-legal-issues-surrounding-electronic-medical-records.html. (accessed November 09, 2016).
 Monegain, By Bernie. "More than 80 Percent of Docs Use EHRs." Healthcare IT News. September 18, 2015. http://www.healthcareitnews.com/news/more-80-percent-docs-use-ehrs. (accessed November 10, 2016).
 Gawande, Atul, President Barack Obama, Kafui Dzirasa, Riccardo Sabatini, and Zoë Keating. Panel discussion about groundbreaking medical technology and its setbacks. The White House Frontiers Conference, from The White House, University of Pittsburgh, and Carnegie Mellon University, Pittsburgh, PA, October 13, 2016. http://www.frontiersconference.org. (accessed November 09, 2016).
 HHS Office of the Secretary. "Individuals’ Right under HIPAA to Access Their Health Information 45 CFR § 164.524." HHS.gov. January 05, 2016. http://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/. (accessed November 10, 2016).
 Balint, Ed. "Ohio Supreme Court Rules in Aultman Medical Records Case." The Repository. March 23, 2016. http://www.cantonrep.com/news/20160323/ohio-supreme-court-rules-in-aultman-medical-records-case. (accessed November 10, 2016).
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.