June 14, 2021
As a medical malpractice attorney, I gain unique insights into the shortcomings of the healthcare industry. Not only do I see the results of medical errors and medical negligence, but in monitoring medical literature for new developments and trends, I can predict how cost-cutting measures and new technology will harm patients in the future. Over the last few decades, we have witnessed an unprecedented investment in electronic medical record systems. While these systems have their good points, they also carry many risks that have already resulted in patient harm.
Indeed, patient harm that results from errors generated by the electronic medical record has earned its own name, “e–iatrogenic injury.” E-iatrogenic injuries can occur by virtue of following algorithms that are inapplicable to a particular situation, relying on data sets when critical clinical information is left out of the decision-making process, or applying algorithms to individual patients who do not squarely fit within the algorithm. Oftentimes, the algorithms are based on data acquired from stagnant populations, like adult white males. Then, in applying them to patients of varying ages, races and sexes, the algorithm leads medical decisionmakers astray.
In addition to potential physical injury that occurs by applying artificial intelligence (AI) and electronic medical record systems to healthcare decision-making, electronic medical records are used to data mine for purposes of research and development. Individuals’ protected healthcare information has value in this setting, but the hospitals, medical device manufacturers and pharmaceutical companies that use this data, do not compensate patients for their valuable personal information. Worse yet, it is ethically improper for healthcare providers to conduct research without a patient’s knowledge and consent. Some data collection crosses the line into human experimentation.
While healthcare systems and their vendors might find patterns in patient data sets that will prove useful in the diagnosis and treatment of a variety of medical conditions, and also lead to cost reduction, patient’s rights must be taken into consideration. HIPAA regulations preclude disclosure of patient information to healthcare providers’ business associates unless there is an indicated medical or business reason for doing so. Despite this, Google, Amazon, IBM and Microsoft have already entered into partnerships that allow them access to the medical histories of millions of patients.
Like any data, existing medical data is only as good as the quality of the information that is inputted. In the clinical setting, limited information is collected from patients by physicians and nurse practitioners who are focused on developing a differential diagnosis and creating a plan for diagnosis and treatment. Using these data sets in unrelated areas of medicine can be misleading.
Given privacy considerations, there is an effort underfoot to “de-identify” personal information from medical records in order to protect the privacy of individual patients. However, this does not address the lack of compensation for this valuable information. Further, it creates incentives for healthcare providers, along with the pharmaceutical companies and medical device manufacturers who manipulate them, to experiment on patients with new medicines and devices while collecting data to see which works best, all without the patient’s knowledge or consent.
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