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95 Iowa L. Rev. 631 (2009-2010)
Property, Privacy, and the Pursuit of Interconnected Electronic Medical Records

handle is hein.journals/ilr95 and id is 635 raw text is: Property, Privacy, and the Pursuit of Interconnected Electronic Medical Records Mark A. Hall* ABSTRACT: Who owns a patient's medical information? The patient, the provider, or the insurer? All of the above? None of the above? In the emerging era of electronic medical records, no legal question is more critical, more contested, or more poorly understood. Ownership was never much in doubt in an age of paper-based records, but now that information can be easily digitized and freed from any particular storage medium, confusion reigns. How this issue is resolved can determine how or whether massive anticipated developments in electronic health records will take shape. The respective property rights of patients, providers, and insurers will strongly influence, if not determine, what form of electronic health-record interchange will predominate. And, whether rights to access and use medical information can be commercialized may determine whether effective, comprehensive medical information networks can emerge at all, absent an overt government mandate. This Article analyzes property rights in medical information from the perspective of network economics. It proposes that patients be allowed to monetize their access and control rights by assigning them to a trusted and regulated intermediary who may then place those rights in a stream of commerce that determines their value and best use. The funds generated can then be distributed both to patients and providers to encourage their creation and use of interconnected electronic records. * Fred D. and Elizabeth L. Turnage Professor of Law and Public Health, Wake Forest University. This research was supported by a Robert Wood Johnson Foundation Investigator Award in Health Policy Research, and it benefited greatly from participants in colloquia at Harvard Law School and the University of Texas Law School, and from conversations with and comments by Kevin Schulman, Craig Richardson, Kristin Madison, Nicolas Terry, Brian Baum, and Greg Vetter. Naturally, the views expressed here should not necessarily be attributed to any of these individuals or institutions.

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