Electronic Medical Records: Just how private are they?

Electronic medical records (EMRs) haven't delivered the promised efficiency or benefits. Worse, privacy concerns can result in people not getting needed care.

Example of an Electronic Medical Record. (Image via Wikipedia entry on this topic made available via GNU General Public License 2.0 or higher)

WASHINGTON, January 31, 2016 — Electronic medical records (EMRs) were supposed to improve patient care by making access to a patient’s medical history more accessible and faster for treating physicians. Having records that could be accessed in real time was also supposed to be cheaper.

Some specific benefits touted about EMRs were:

  • Quick access to records from anywhere, allowing for more coordinated and efficient care
  • Enhanced decision support, clinical alerts and reminders
  • Interfacing with labs and registries
  • Legible, complete documentation that facilitated accurate coding
  • Safer, more reliable prescribing
  • Reduced need to fill out the same forms at each medical visit
  • Electronic referrals allowing easier access to follow-up care with specialists

Dr. Ashok Gowda, an orthopedic surgeon in Maryland, observes that younger doctors generally embrace the electronic medical record system more than older doctors. He notes there is a learning curve involved and many established doctors do not like the time that’s required to get up to speed, not to mention the time they then spend at the computer. And certainly, none enjoys the expense involved.

Effects of the Health Technology for Economic and Clinical Health Care Act

It was back in 2009 that Congress passed the Health Information Technology for Economic and Clinical Health Care Act, which required the health care industry to digitize medical records. Since then, unfortunately, the government’s promise of “better, cheaper and faster” medical record keeping has not been fulfilled.

In September 2014 the American Medical Association (AMA) called for a major redesign of the entire EMR system because, according to the organization’s then president-elect Steven Stack, “electronic records fail to support efficient and effective clinical work. That has resulted in physicians feeling increasingly demoralized by technology that interferes with their ability to provide first-rate medical care to their patients.”

The Rand Corporation had conducted a study on the issue for the AMA, and their findings were the basis for Stack’s comments. The Rand study found that many doctors shared Stacks observations, complaining about spending too much time looking at computer screens instead of examining patients.

One physician critical of the system said that it takes him over 50 mouse clicks as well as scrolling through dozens of screens to document a straightforward office visit for a sinus infection. Worse, even refilling a simple prescription took over 10 clicks to complete the task.

A 2013 study by the “American Journal of Emergency Medicine” found that doctors in community hospitals averaged 44 percent of their time in front of a computer compared to 28 percent devoted to direct patient care.

Automation was supposed to speed things up. Instead, vendors entering the industry created their own software systems, and none discussed them others, thus frustrating one of the very core goals of the plan.

Mike Malek, another orthopedic surgeon in the Washington, D.C., area, has much to say about electronic records. Stated briefly, he is not a fan. He says that EMRs have created enormous expense and time drains for physicians.

As an example, his practice paid $40,000 for the electronic system. He says if he had additional doctors, there would be extra premiums. He relates his knowledge about a major local hospital system, INOVA. Composed of seven hospitals, INOVA paid, he believes, in the neighborhood of $450 million for the popular “EPIC” EMR system.

Dr. Malek says that before EMRs, he would do a routine exam in 15 minutes, then dictate his notes in about four minutes. Now he spends 12 minutes in front of the computer logging in the notes from the exam.

A medical industry trade publication, “Health Affairs,” reports that in 2013, doctors country-wide were averaging losses of over $43,000 on their EMR investments. Clearly not “less expensive.”

Malek says that there are about five major systems used by hospitals across the country, with hundreds of systems used by individual doctors and multi-physician practices. He says getting records electronically from a patient’s primary care doctor or to a referral doctor is forbidden because of privacy laws preventing emailing.

Privacy concerns

Privacy was, and remains, a major concern with EMRs. Like almost everything else online, concerns about access by hackers and even about honest mistakes are appropriately backed up. The increased availability of private records online makes those records that much more likely to fall into the hands of cyber criminals.

Efforts to prevent hacks and mistakes are certainly being made, and they are being improved upon constantly. Nonetheless, even encryption technology and firewalls do not offer complete or comprehensive answers. James C. Pyles, an attorney specializing in patient privacy rights, said patients have greater privacy rights regarding the size of a shirt they may have purchased online than they do with their mental health records.

During the two-year period 2012-13, over 18 million Americans’ health records were breached electronically, according to a report published by The American National Standards Institute.

Lack of privacy has also served at times to prevent needed medical care. The lack of trust in the system has affected millions of people who are unwilling to disclose necessary health information. Some of these decisions have had severe and even life-ending consequences. Dr. Deborah Peel, founder of a group called Patient Privacy Rights, says that millions of people every year avoid treatment because they know their information is not private. Specifically, the Department of Health and Human Services indicates that in 2013:

  • 586,000 Americans did not seek earlier cancer treatment
  • 2 million Americans did not seek treatment for mental illness
  • Millions of young Americans suffering from sexually transmitted diseases did not seek treatment
  • 150,000 soldiers suffering from PTSD did not seek treatment

The lack of privacy also contributed to the highest rate of suicide among active duty soldiers in 30 years.

Who controls your Electronic Medical Records?

EMRs create a “Who has control?” issue. With paper records, it was clear that the doctor who treated the patient had the relevant records. Sharing them, accessing them, modifying them, etc., was traditionally point-to-point, primarily accomplished by faxing or mailing. With EMRs, there are untold numbers of access points, with each one a potential vulnerability.

As if to emphasize this point, Dr. Malek says that if he has a patient’s hospital medical record number and his physician password, he can access any patient’s information, whether that patient is his or not.

Patient privacy is a fundamental right that is now more challenged than ever because of EMRs. Access to these records has increased exponentially.

In an episode of “Seinfeld,” Elaine wanted to erase a derogatory reference in her paper medical chart. She even made an appointment with a new doctor so she could try to steal her records and accomplish this. The doctor wouldn’t give her the chart. Imagine her lament if those records were electronic.

What are your rights?

You have the right to your health information. Having this information allows you to be more in control of decisions regarding your health. With your records, you are better able to monitor and adhere to treatment plans, find and fix errors, and track your progress in wellness and disease management programs. In legal scenarios, such as time when you may have an injury claim, you must be able to access your records quickly and without hassles.

A very specific law exists that provides the details of your rights to accessing your health information. The law requires most healthcare providers to give you your records upon request or to send them to a designated person or entity of your choice.

A medical care provider may not:

  1. Require you go to his or her office to request access or to provide proof of identity in person;
  2. Require you to use a web portal; or
  3. Insist on mailing your records to you.

For detailed information on this law, check out this link: Access Your Medical Records Law.

Stay healthy please. Exercise and eat your vegetables.


Paul A. Samakow is an attorney licensed in Maryland and Virginia and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website

His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.

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