Legal issue arises over electronic patient files
South Florida Business Journal - September 8, 2006
by Brian Bandell
There's a federal push to digitize health care records, but experts are worried over allegations that a Boca Raton company cut some doctors' access to electronic patient files after they failed to pay fees.
It turns out there is no current law that would stop a software vendor from doing so, federal and state agency officials say. The laws that cover patient privacy and access to records apply to health care workers, not third-party vendors.
That has left an unclear legal recourse for five doctors who claim Boca Raton-based Dr. Notes cut off their access to medical records of dozens of patients because they wouldn't pay higher tech support fees.
"It should be illegal for a company to withhold data from a doctor so a patient can't get their care," said Dr. Joseph M. Heyman, a board member of the American Medical Association (AMA). Aside from the allegations about Dr. Notes, Heyman, said he has never heard of an electronic medical records vendor cutting off access to a doctor. The AMA doesn't have a policy to deal with the situation.
Dr. Kenneth W. Goodman, director of the bioethics program at the University of Miami, says, "If any patient comes to grief over this, then society will have dropped the ball."
In an e-mail, Dr. Notes CEO Angel M. Garcia disputed the doctors' assertions of a cutoff, saying they can still view patients' records if they don't pay support fees; they just can't enter new data or print it out.
However, the five doctors insisted they could not view any data at all. Former Dr. Notes tech support specialist Ray Causwell, who now consults with doctors who use the program, agreed with their accounts.
Garcia and ex-employees have said Dr. Notes sold its software to more than 5,000 doctors nationwide. Some doctors say the program works just fine and they have a password that doesn't change every month.
In May, some doctors using Dr. Notes said they received requests for higher tech support payments from a company called Intracare, which said it bought the international rights to the software. State records show Intracare is based in Garcia's Delray Beach home and its CEO is his wife. On April 7, two creditors obtained a writ from a Palm Beach Circuit Court judge to seize the software's patent, copyright license and source code, which was collateral for a $280,000 loan to Dr. Notes. On Aug. 28, the company was ordered to turn over documents to help the creditors obtain the intellectual property and its associated contracts.
This is scary to anyone who gets an EMR via ASP. ASP is "Application service provider" and is where the program is housed on the server of the company. The upside to this is that it reduces start-up cost and hardware requirements. All you need is a good internet connection (which you probably have if you are reading this).
The problem is that you are at the mercy of the company who you are working with. In this case, you must pay the support fees or you lose functionality (or even possibly ability to view). This is a serious problem and should be well-understood up front when you buy your EMR system. This is, to a lesser degree, a problem with non ASP vendors as well. If you do not pay the support fees, you lose upgrades and help if you have a "down" situation. This is why you need to know the nature of the company you are dealing with.
Abide by the old rule: if something sounds too good to be true, it probably is.