Property, Privacy and the Pursuit of Integrated Electronic Medical Records

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 other 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 content can be easily digitized and freed from any particular storage medium, confusion reigns. How this issue is resolved can have huge impacts on how or whether massive anticipated developments in electronic and personal 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 informatics ends up predominating. 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 overt government mandate. This paper analyzes optimal 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 intermediary who may then place these 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 adoption and use of interconnected electronic records.