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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
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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