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By Gregory R. Piche, Holland & Hart

Hospitals, Physicians and other health care providers continue to struggle with the cost, interoperability, access and security issues related to adoption of Electronic Health Records ("EHR"). The Obama administration is very much behind the development of EHR for its anticipated quality improvement and cost reduction benefits. Healthcare providers are very touch about their medical records control and are somewhat wary of the easy portability of records in digital format. There is a lot of inertia among patients who are reluctant to change physicians to new ones who are not aware of their history and do not have direct access to their charts. Those charts have an economic value to the providers who own them.

The Personal Medical Records ("PHR") movement holds out the promise of providing greater control and knowledge in the hands of individual consumers of health care who can maintain their own records and move them easily from provider to provider as needed or desired. It promises to improve quality by providing a new provider in either an emergent or non-emergent situation with a hopefully complete and accurate history of past diagnosis, treatment, laboratory tests, allergies, medications, family medical history, etc. which can be invaluable in effectively treating the patient. It also ought to eliminate some waste and duplication in avoidance of unnecessary tests and efforts to retrieve past historical information from vague and ill-defined sources.

The idea of patient controlled medical records is not new, but the advances and technology have radically changed the platforms and the immediacy of access to them. Portable Storage PHRs have been around for a while which permits a patient to store PHR on DVDs, memory sticks and UBD flash drives. The problem with those is that they can be damaged or lost easily. Computer based programs have been around for a while, but one needs access to the computer to produce the information.

More recently on-line cloud storage of medical records through such enterprises as Google Health and Health Vault by Microsoft have surfaced with the medical records being stored in a remote site and available to be conjured over the internet on either a computer or hand held device such as an Ifone. These internet based storage sites of course must have "radiation hardened" security features. What is unclear is the "monetization" plan for these companies. How will they make their money? Through generic ad revenue? Through service fees? Through sales of "scrubbed" medical data. The interesting feature of companies like Google and Microsoft is that they generally know where the money is, yet they seem reticent in identifying the pot of gold for PHR.

Can it be that the money is ultimately in the patient data? A recent New York Times article indicated that the annual market for health record systems to be $ Billion to $10 Billion dollars. About 5 percent of this data comes from the sale of data and analysis. The so called scrubbed information of personal health information can be of great value of pharmaceutical DME and other companies. Some of the companies providing "cloud" storage facilities on the interment have contractual features which allow them to control and even resell the data, in scrubbed format, without patient consent. Ultimately companies like Google and Microsoft are competing in the accumulation and sale of information and medical information is important, valuable and marketable.

The question arises as to what is the harm in the selling of "scrubbed" data without patient identifying information? It is instructive to remember the effort of Latanya Sweeney director of the Data Privacy Laboratory at Carnegie Mellon University who was able to pick out the medical records of the Governor of Massachusetts from so called scrubbed medical information published by the Massachusetts insurance commission by correlating the data with birthdays, ZIP codes and general information published in the Massachusetts voter-registration rolls. Ms Sweeney indicates that birth date, gender and zip code can be used to uniquely identify 87 percent of the U.S. population. The defining question is whether the repositories of PHR are in it for the patients or the data.