Journal of AHIMA - October 2011

says. “Clinicians will tell you ‘I will happily share that informa-
tion to whoever asks me because my goal is to improve patient
care.’ But the business people might think, ‘Oh my gosh though,
think how much money we have spent, hundreds of thousands
of dollars, in helping come up with those indicators that we are
now maybe propagating.’”
While clinicians typically win these types of arguments, Egan
says there is tremendous pressure on the business side to make
money or at least recoup the cost on this type of software.

Software companies have concerns about their proprietary information as well, Orth says. EHR vendors have software built into their systems that is proprietary and valuable to competing vendors, software details that can be sent out with health information in an exchange.

Many vendors make their provider clients sign contracts that state they will not release these proprietary details. Should a provider unknowingly send out vendor proprietary information during a routine health information exchange, that provider could be held legally accountable for breaking the contract. Product licenses could be revoked and financial penalties or lawsuits could result.

Malpractice

The use of an HIE, or lack thereof, could lead to lawsuits in the future. While no cases have been filed yet, Egan and Orth see the potential for malpractice lawsuits being filed if a provider had access to vital information through an HIE but failed to review the information.

In the past record transfers have not been immediate enough to constitute a lawsuit stemming from a provider not accessing an exchanged record. But as HIEs improve their processes and speed up their delivery, malpractice suits could appear. Facilities would need to modify their practice procedures to ensure staff has checked whether there is further relevant information about each patient by way of an HIE.

“That is the biggest new legal fear,” Egan says. “In this world where now the record is going to be available and available fairly instantaneously, the failure to [access records] resulting in harm is really looming and something that folks should start to think about.” ¢

Chris Dimick ( chris.dimick@ahima.org) is staff writer with the Journal of AHIMA.

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