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December 28, 2011

Non-lawyer Perspective

Some perspective on e-discovery from non-lawyers.  Dr. Carolina Klien, a forensic psychiatrist from Saint Elizabeth’s Hospital in Washington, D.C., recently published an article in the Journal of the American Academy of Psychiatry and the Law entitled, “Cloudy Confidentiality: Clinical and Legal Implications of Cloud Computing in Health Care.”

Klein confirms what we know in her abstract: “Privacy laws that speak to the protection of patient confidentiality are complex and often difficult to understand in the context of an ever-growing cloud-based technology.” She highlights the challenge facing physicians:  “Just as information management in the digital era was finally getting worked out in legislation and practice, a new modality appeared, one that physicians may be ill-prepared to accommodate.” 

The challenge facing physicians is to adopt cloud-based computing to HIPAA. The attraction of cloud-based computing for medical providers is increased access to patient data through a centralized system. 

However, physicians must rely on the security practices of the cloud service provider.  The most interesting observation is that the “discussion acquires another layer of complexity when certain sociopolitical views are taken into account.”  In particular, the author notes:

"...consideration must be given to the argument of who should ultimately decide on the scope and method of access: the patient, the practitioner, or the government. Some advocate for it to be the patient, as it would increase patient empowerment and decrease governmental involvement.  Others believe that the practitioners are best for assessing the needs of their particular practice. Advocates of legislative decision-making emphasize the need for federal regulations to prevent individual indiscretions.

Physicians must be particularly care of HIPAA concerns, as HIPAA violations can lead to civil liability.  The challenge is that some of the legal frameworks for the use of cloud computing by medical providers remain under-developed. Klein suggests that obtaining informed consent from patients may “a legal protection in the event of a subsequent lawsuit.”

The risk to physicians is that fear of liability or HIPAA compliance issues may prevent the use of beneficial technology. Klein concluded that “useful tools are often neglected or discarded due to a perceived threat of litigation that stems from a law that originated from a common goal: to further patient care as health information moves into an electronic format.”




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