It seems clear a public majority demands we collectively provide for US medical care in the 21st Century. Our legislative representatives, responding that demand, are assuming control of medical care. That includes, of course, the medical record:
Whose medical record is it?
Historically, the practice of medicine has been secretive. The Oath of Hippocrates includes this:
‘I will impart a knowledge of this art …to disciples bound by an indenture and oath according to the medical laws, and no others.
Prescriptions written in archaic apothecary symbols and cryptic abbreviations from Latin are only rather recently being replaced by English and metric scribbles, and by e.prescriptions. In an ED 65 years ago, if a patient survived a knife wound in the back, and claimed it was self-inflicted, no physician reported anything to anyone; a priestly compact prevailed. For better or worse, that compact barely survives now only in the businesses of law, psychiatry and religion.
Yet in the US, (by contrast to some foreign countries) the medical record itself still is openly or covertly considered property of the physician, hospital, or institution that compiles it. We recognize, inferentially at least, a patient’s right to limit sharing of the record with others; we obtain permission for that. So the record apparently partly belongs to the patient; yet ironically there is a reticence to share it easily with it’s putative part owner; we tend to require a written release, impose a charge, or dribble out a bit at a time.
Those who rudely overleap this barrier include—not yet the patient– but the lawyer with a subpoena, the insurance carrier, the government. In fact, for legal purposes there is an unlimited set of ancillary information scattered about: like phone call logs, testimony from staff or others, time clocks, charge cards, video surveillance, etc. Almost everything is potentially available to the court. Yet the basic question remains:
Whose Medical Record Is It?
But that’s a trick question; there are at least four distinct records:
- The record of diagnoses and test results that may support or weigh against a diagnosis, including consultant reports, procedures, and hospitalizations.
- The record of treatment, interventions, complications, and medications—including reactions—that may be important in the future.
- The record of visits, billing and payment.
- The clinicians’ partly subjective and written or recorded personal thinking about diagnosis and treatment
Only excepting the last, I suggest that all should be available immediately, on paper or on-line, to each individual patient, who thereafter has the option of making it available to any subsequent person, agency, or ‘provider’. This would:
- Encourage the patient to learn about, and participate in his own health care.
- Allow the patient, as co-owner of these records, to leapfrog some counterproductive HIPAA restrictions.
- Facilitate timely transfer of records, reducing delay and costly duplications.
It could be argued that even the clinician’s ‘observations and recorded thinking’ are already available to the patient indirectly when subpoenaed; therefore why withhold it in the first place? Wouldn’t the clinician be set on guard, and never write those thoughts down in the first place? Yes, perhaps: and what a loss that would be to physicians and patients—to medicine!
It should not be tolerable that NSA type capturing and surveillance of emails, phone calls, private conversations, etc. is necessary for the protection of people from bad folks, including US. At what cost? (I’m sorry Sir! Just kidding!)
The written or recorded thoughts of the clinician should remain private. To make them available in court would deny the 5th amendment right to avoid self-incrimination, would force testimony against oneself. Control of medical care may be justified by demand, but must not include control of clinician thinking. By paying for medical care, government acquires the right to control a physician’s training, income, prescriptions, diagnostic workup, treatment, hospital, and office… but not our thoughts about the care of any individual patient. Enough!