AHLA Hospital's Friend or Foe: The Age of Social Media and Health 2.0

Today Jody Joiner and I presented at the AHLA Hospitals and Health Systems Institute on the use of social media by hospitals and health care providers. We provided an overview of social media use by hospitals and health care providers, discussed the pros/cons of using social media in the health care environment, presented case studies of the risks and legal implications and did a short role play involving tweets in the context of a medical negligence case. We also provided those attending with recommendations on developing social media guidelines and policies.

To show the speed and ease of using social media tools to spread information, news and photos we we did some live shots during the presentations using an iPhone that were then loaded up to my blog, Twitter and Facebook. We then pulled up the posts and tweets at the end of our hour presentation.

Great audience with great follow up questions. Thanks go out to Mark Browne (@ConsultDoc) and Peter Leibold (@HealthLawyers) for live tweeting during the session.

AHLA Annual Meeting 2009: PHRs, Health 2.0 and the Impact of Social Media on Health Care

Today I am giving a presentation with Jud DeLoss on the topic of "PHRs, Health 2.0 and the Impact of Social Media on Health Care" at the American Health Lawyers Association 2009 Annual Meeting in Washington, DC.

As a part of the presentation we are sharing the slides from the presentation with the attendees via SlideShare. Below is a copy of the slide deck from the presentation.

PHRs, Health 2.0 and the Impact of Social Media on Health Care

View more documents from Bob Coffield.

Health 2.0 Boston: Tweet Stream Analysis

Chris Hogg does a great job of capturing the metrics of the Twitter discussion that occurred during the recent Health 2.0 Boston conference. Check out his slide show analysis of the Tweet Stream from the conference.

Health 2.0 Tweet Stream Analysis

View more presentations from Chris Hogg.

As someone who tweets at conferences that I attend I found the analysis very interesting. Some of what interested me the most from the slides:

• There were over 3,000 tweets from 344 people attending the conference. Don't know what the total attendance of the conference -- but I suspect the 344 number is a relatively large percentage of the total attending.
• Loved the use of the Wordle clouds to visually represent the discussion that occurred via Twitter.
• Great to see the word "patient" as the second most tweeted word.
• Slide 10 shows a mapping of those in the Health 2.0 network. Would love to see a blown up version of this slide to see the connections in more detail.

The Economist: Health 2.0 How far can interactive digital medicine go?

The Economist looks in on Health 2.0 in the article, Health 2.0: How far can interactive digital medicine go?

Highlights for me:

• Quote by Neil Seeman who thinks Health 2.0 is important "because it reinvents how we identify opinion leaders and exploit disruptive innovation."
• Steve Case, founder of America Online, who likens the current state of digital medicine to the late 1970s hwen Apple ushered in the age of personal computing.
• Concluding remarks taht Health 2.0 might not be revolution but instead reformation and recognition that the shift towards patient empowerment is "unstoppable."

Health Affairs: Take Two Aspirin and Tweet Me . . .

The March/April 2009 Issue of Health Affairs concentrates on the topic of Stimulating Health Information Technology. Although I am not a subscriber to Health Affairs the issue looks to have some great articles on health information technology and the current changes in the field.

Included in the issues is a report from the field article by Carleen Hawn titled, Take Two Aspirin And Tweet Me In The Morning: How Twitter, Facebook, And Other Social Media Are Reshaping Health Care (pdf version). I had the opportunity to talk with Carleen about some of the interesting legal issues that are starting to appear as a result of the intersection of social media and health care. I was pleasantly surprised to see that she used some of our discussion in the article.

The article focuses on a number of health professionals who are on the cutting edge of integrating social media and health 2.0 type concepts into their health care practice and thinking about how social media can have a positive impact on traditional health care industry models.

Like others, I found it ironic when Health Affairs first issued the article online that they only made it available behind the firewall (subscription based). An article on social media, openness, transparency, etc. and yet hid it in an old world way. Well, it appears that the editor of Health Affairs does listen to the wisdom of the health crowd because a note is now listed below the article stating "EDITOR'S CHOICE - FREE ACCESS." Thanks to the Health Affairs staff for recognizing the value of providing free access to the article.

If you are interested in the article you might find interesting what others are saying about the article -- including e-Patient Dave, Jay Parkinson, MD, Ted Eytan, MD and others.

U.S. Hospitals: Using Facebook, YouTube and Twitter

Great post listing the U.S. Hospitals using social networking tools like YouTube, Facebook and Twitter. Check out the complete list of 150 hospitals and a related FAQ about the Hospital Social Networking List at Found In Cache: Notes from a Hospital Web Manager authored by Ed Bennett.

Thanks to @schwen for pointing out the list.

Medical Uses of Twitter: Twitter Consult

Two case studies pointing out additional medical uses for Twitter from Jennifer Texada at How to Go Web 2.0.

Her post, Health 2.0 Makes it to Twitter, discusses two separate cases. The first involved the use of Twitter by medical professionals seeking real time advice with a diagnosis. Call it a "Twitter Consult." The second involved a researcher looking for exercise study participants who were endometrial cancer survivors.

WVHFMA: Consumer Driven Health Care

Tomorrow I will be speaking on consumer driven health care at the West Virginia Chapter Healthcare Financial Management Association's Winter Education Conference in Charleston, West Virginia.

I thought I would post my slides for the presentation titled, Consumer Driven Health Care: The Impact of Social Media and Health 2.0. The presentation is an introduction to the concepts of social media, health 2.0, consumer driven health care and some of the legal implications.

This past week I ask my social media network on Facebook and Twitter to help develop a list of words and phrases that represent Consumer Driven Health Care. The results are included in the presentation.

WVHFMA CDHC And Health 2.0 (1 15 09)

View SlideShare presentation or Upload your own. (tags: driven consumer)

Lifeline Television Program: Health Information Exchange and Health 2.0

Last month I had the opportunity to tape a television segment on Health Information Exchange and Health 2.0 for Lifeline, a weekly 30 minute public television program focusing on health and Medicare information for West Virginians. The segment started running this week and should run through the month of January. 

The show is produced by West Virginia Medical Institute to help educate West Virginians on a variety of health, Medicare and healthy living topics. Marc McCombs, WVMI's Director of Corporate Communications hosts the weekly shows. Many of Lifeline's topics are also covered in WVMI's companion print newsletter, also called Lifeline.

Lifeline airs on the West Virginia Library Television Network in over 200,000 households throughout the state. Lifeline airs every week in the Charleston area on Suddenlink Channel 17 at the following times:

• 11:00 AM Tuesday
• 5:00 PM Tuesday
• 11:00 PM Tuesday
• 5:00 AM Wednesday
• 2:00 PM Saturday 

You can find the channels for other cable systems airing the program around West Virginia by going to the Lifeline webpage. Also, the Lifeline page lists some of the archive shows. Below is a teaser clip from the show.

Reengineering Health Information Technology to Wire The Medical Home

Over at The Health Care Blog Dr. Kibbee issues Part 2 of his Confessions of a Physician EMR Champion, subtitled "A Conversation with American Physicians About How to Save Medicine in the Age of Information." The Part 2 post, Empowering Health IT for the Connected Medical Home, is a must read for all interested in the world of changing world of health/technology.

Dr. Kibbe lays out 5 areas that health IT should focus on to be empowering and disruptive to the current models:

1. electronic data and information collection and access
2. communications among providers and patients
3. clinical decision support
4. population quality, performance, and cost reporting
5. consumer/patient education and self-management

He highlights the importance of stepping back and looking at the current EMR model (a bit of thinking outside the box):

There is nothing transformational or disruptive about EMRs because they have been designed to meet the functions and features of a status quo business model -- not the collaborative and participatory capabilities required of the business models of the future health system.

In this next installment of the conversation, I’d like to suggest some specific capabilities that health IT ought to empower doctors and health care teams to perform on behalf of, and in collaboration with, their patients.

I’m suggesting that we go back to the drawing board and design health IT that is truly a good fit for doctors and patients in a system that rewards quality, safety, and efficiency of care while working to keep people healthy, instead of simply adding up the charges when they’re sick.

I'm involved on a number of fronts looking at health information models for West Virginia that will improve the delivery of care and reduce the costs. Dr. Kibbee's comments and thoughts are valuable for others looking at these same issues.

Tip to Ted Eytan on the post.

The Implications for Live Tweeting Surgery

Yesterday Robert Hendrick, health care disruptor (I mean that in a positive way) and co-founder of change:healthcare, live tweeted his laser ablation surgery at the Surgical Clinic in Nashville. He also tweeted the first installment of his surgery to remove his varicose veins -- Live from the Operating Room.

Robert and his counterpart, Christopher Parks, are all about transparency in health care, especially as it relates to payment issues. This serves as just one more example of their efforts to engage health consumers and create transparency in health care.

Robert's live tweeting during surgery struck me as an interesting application of Twitter and other mobile social networking application. Here are just a few thoughts:

• A way to keep friends and family updated on your condition, surgery, etc.
• Useful for others who might be contemplating a particular procedure or surgery to get a real time look at what might be involved. I know someone who is contemplating undergoing the same procedure and plan to share Robert's posts with them.
• As more and more patients and providers start to document information via social networking avenues - what might this mean during future litigation and discovery? Certainly seeking tweets, historical Facebook updates, etc. might be valuable in either pursuing or defending litigation. What are the rules for lawyers in pursuing such evidence? What might this mean for the companies providing such services as they see more and more subpoenas for information?
  

For a real time look at surgery tweets check out Twitter Search for the term -- surgery. Interesting stuff. I welcome others thoughts on the topic.

Thanks Robert for making my day for awarding me "best tweet of the procedure." Follow Robert on Twitter at @Robert_Hendrick.

UPDATE (1/18/09): More discussion on live tweeting surgery. This time it is from the provider side and not just the patient tweeting away their surgery. Henry Ford Health System live tweeted a surgical procedure in Detroit to a group of medical professionals at a conference in Las Vegas.

Shel Israel at Global Neighborhood has a great summary/interview with background on the event that will be part of his upcoming book, Twitterville. Bertalan Mesko has provides coverage about the Live Tweeting Surgery at at ScienceRoll. To find all the tweets about the surgery search via Twitter Search for the tag: #twOR.


After seeing the post by Shel I reached out to him and told him this wasn't the first live tweeted surgery. However, it was the first tweeted "from the provider side" -- @HenryFordNews.@Robert_Hendrick still gets the 1st award from the patient side.

UPDATE (1/29/09): Noticed in my Twitter stream today that Rick Sanchez of CNN is live tweeting his knee/meniscus surgery. Another live tweeting patient. In this case, high profile reporter from CNN. Follow Mr. Sanchez's twitter stream at @ricksanchezcnn.

UPDATE (2/17/09): Elizabeth Cohen of CNN (@elizcohenCNN)covers the live tweeting of surgical procedures by hospitals in the article, Surgeons send 'tweets' from operating room. Included with the article is a video detailing the live twittering at Henry Ford Health Systems. You can also follow the tweet stream of the surgery tagged via Twitter as: #hfhor.

UPDATE (5/26/09): mobilehealthnews provides a historic timeline of the most notable examples of live tweeting surgery in a post, Twitter surgery timeline: 8 months of OR Tweets.

The Rise of the Personal Health Record

The October edition of the Health Lawyers News, a publication of the American Health Lawyers Association (AHLA), contains an article I co-authored with Jud DeLoss, a principal in the law firm of Gray Plant Mooty, who blogs at Minnesota Health IT. On the eve of the Health 2.0 Conference next week the article provides a look at some of the legal issues around PHRs.

The article, The Rise of the Personal Health Record: Panacea or Pitfall for Health Information (pdf version), provides an introductory background on the changing world of PHRs, highlights Health 2.0 and covers some of the legal implications and compliance issues for PHRs. We are working on a longer and more detailed analysis that will be turned into a Member Briefing for the Health Information and Technology Practice Group. I would appreciate your posting a comment on topics or legal implications that we might consider covering in the full Member Briefing.

If you are a health lawyer, law student interested in health law or otherwise interested in the the legal aspects of the health care industry and not already a member of AHLA -- think about joining. The AHLA is at the top of my professional associations for written resource material, member briefings, in person programs, listserves and collaboration with health lawyer colleagues.

The Rise of the Personal Health Record: Panacea or Pitfall for Health Information

I. Introduction
Giant bytes have been taken out of the personal health record (PHR) market by technology companies like Google, Microsoft, Dossia, and others on a mission to connect consumers with their health information. If successful, the efforts by these and other Health 2.0 technology companies could transform the health care industry. It is too early to say whether the PHR will be the catalyst for health care reform; however, we can explore what may lie in the wake if a consumer-focused PHR revolution occurs.

Technological changes in health information management are altering the way in which patients and health care providers maintain, use, control, and disclose health information. We are experiencing a paradigm shift from the current decentralized system of records maintained by multiple entities at multiple locations – often with conflicting and duplicative information – to a centralized system relying on personal health information networks (PHINs), regional health information networks (RHIOs) or national health information exchanges (HIEs).

In the 21st Century, our health care system has become more fragmented and specialized. Patients seek the services from a variety of providers – from family care providers to specialists. Moreover, as individuals move from city to city and state to state, they leave a trail of partial medical records with various providers, insurers, and others.

The rise of electronic medical records (EMRs), electronic health records (EHRs), RHIOs, and HIEs reflects a need to address the increasing complexity of maintaining and sharing health information. PHRs may be the disruptive technology providing an alternative to a complex system of interconnected interoperable health information systems, often among health care stakeholders who have conflicting and competitive interests.

A. PHRs Defined
The Office of the National Coordinator for Health Information Technology (ONC) defines a PHR as “an electronic record of health related information on an individual that conforms to nationally recognized interoperability standards and that can be drawn from multiple sources while being managed, shared and controlled by the individual.”[2]

The ONC report highlights the growing importance of PHRs to facilitate the participation of individuals in their own care and wellness activities. Encouraging individuals to become engaged in their health care, and providing the means to document, track, and evaluate their health conditions, a PHR can lead to more informed health care decisions, improved health status, and ultimately, reduced costs and improved quality of health care. The PHR is broader than a medical record and contains any information relevant to an individual’s health, including diet and exercise logs, a list of over-the-counter medications, and personal information.

PHRs are distinguishable from EMRs and EHRs. A key distinction is that a PHR is under the patient’s control. The individual patient is the ultimate guardian of information within a PHR. Portability is another distinguishing characteristic of the PHR. The goal of a PHR is to be a lifelong source of health information for an individual.

B. History of PHRs
According to Wikipedia, the earliest article mentioning PHRs is dated June 1978. Wikipedia also mentions that most articles written about PHRs have been published since 2000. In its November 2001 report, the National Committee on Vital & Health Statistics (NCVHS) mentions PHRs and the growing consumer use of Internet-based health information services.[3]

Early on, PHRs were used in a rudimentary fashion as a way for individuals to track their own specific health care information. First generation PHRs can be categorized as either stand-alone PHRs, requiring patients to gather and enter their own information, or tethered PHRs, provided by a health plan, provider, or employer sponsor who populated the PHR with information.

The past twelve months mark a new era of increased activity. Call it a second generation of PHRs or PHR 2.0. The advancement is led by the entrance of large technology companies, such as Google with Google Health and Microsoft with HealthVault, into the PHR marketplace. PHR
2.0 is not merely a data collection application, but rather a platform for the electronic aggregation and storage of health information as well as the foundation for various applications.

At the federal level, ONC also is focusing on patient-centered health care. Released in June 2008, the ONC - Coordinated Federal Health Information Technology Strategic Plan: 2008-2012 serves as the guide to coordinate the federal government’s health information technology (HIT) efforts to achieve a nationwide implementation of an interoperability health information system.[4] A critical goal is to create “patient-focused health care” through the promotion of the deployment of EHRs and PHRs and other consumer HIT tools.

C. Social Networking and Health 2.0
The transformation to a PHR-based health information system is fueled by the intensifying interest in web-based social networking and the Health 2.0 movement. The increasing adoption of social networking and lightweight web-based tools among the general public may create a willingness to have and utilize PHRs. There are various technology players positioning themselves to create the “killer PHR application” to become the default standard for industry and the personal portal for each patient’s personal health information.

The definition of the Health 2.0 movement is still being refined.[5] Jane Sarasohn-Kahn, of THINK- health, defines Health 2.0 as “the use of social software and its ability to promote collaboration between patients, their caregivers, medical professionals and other stakeholders in health.”[6] Early use of the Internet for health care was limited to the distribution and search for health information. The read-only World Wide Web has been transformed into the World “Live” Web. Today, user-generated content is being created by businesses, professionals, and ordinary people at lightening speed through social media tools such as blogs, wikis, collaborative websites, and a variety of web based products.

Online health social networking and software as service models harness the positives of networking and collective intelligence to generate a new level of collective knowledge. Whether it is patients sharing observations on chronic conditions,[7] physicians globally exchanging clinical information and insights,[8] human powered health service searching,[9] online consulting,[10] or promoting transparency through tools for organizing, managing, and comparing health care paperwork[11] -- the Health 2.0 movement is creating business models and becoming a catalyst for improving efficiency, quality, and safety of health care.

D. The Common Framework for Networked Personal Health Information
Recently the Markle Foundation announced the Common Framework for Networked Personal Health Information,[12] which has been endorsed by a collaborative group of providers, health insurers, consumer groups, and privacy groups. The framework outlines a set of practices to encourage appropriate handling of personal health information as it flows to and from PHRs.

The framework uses the term “consumer access services,” which it defines as an emerging set of services designed to help individuals make secure connections with health data sources in an electronic environment. Consumer access services are likely to provide functions such as authentication as well as data hosting and management. The framework also provides analysis of the application of HIPAA to consumer access services.

II. Ownership of Health Information
The shift to a patient-centric PHR from a provider based record raises traditional property law issues. As health information becomes networked and technology allows for health information to be transferred more easily, the lines of ownership of health information become further blurred.

Health information is often viewed under the traditional notion of property as a “bundle of rights,” including the right to use, dispose, and exclude others from using it.[13] This legal application of historic property law may not be well suited to today’s health information where patient information is shared via a variety of formats, copied, duplicated, merged, and combined with other patient records into large scale databases of valuable information.

Who owns health information? The physician? The insurer? The patient? Under the traditional rule, providers own the medical records they maintain, subject to the patient’s rights in the information contained in the record.[14] This tradition stems from the era of paper records, where physical control meant ownership. Provider ownership of the record is not absolute, however. HIPAA and most state laws provide patients with some right to access and receive a copy of the record, along with amendment and accounting of disclosures.[15]

The PHR model, where all records are located and maintained by the patient, flips and realigns the current provider-based model of managing health information. Instead of provider-based control, where the provider furnishes access to and/or copies of the record and is required to seek patient authorization to release medical information, the PHR model puts the patient in control of his medical information.

III. Legal Liability and Compliance Issues Associated with PHRs
PHRs open the door to a wide-range of new and modified legal claims. PHR stakeholders should recognize and address the negative implications to avoid long-term problems. These, of course must be balanced against the liability risks of not adopting an available technology designed to improve the quality of health care.

A. Medical Malpractice
Medical malpractice cases address whether: a patient-physician relationship was created; the treatment provided was within the standard of care; a breach of the standard of care was causally related to the injury; and the patient was injured.[16]

Seeking to prove or disprove these elements raises the issue of whether the PHR would be relevant as evidence against a provider. Generally speaking, if the data within the PHR was provided to or accessible by the provider then the evidence is admissible.[17]

Many providers have expressed concerns over the accuracy and completeness of PHRs if controlled by patients. Whether the information is credible is a legitimate question. On one hand, a patient would not want to jeopardize his or her health by including inaccurate information. On the other hand, it is well known that patients often withhold sensitive and possibly embarrassing information.

Moreover, with the advent of electronic discovery under Federal and States Rules, the production of PHRs in their electronic form could impact evidentiary issues. Health 2.0 and other social networking sites suddenly become fair game for defense lawyers seeking to discredit patients’ claims. Patients may attempt to refer to those same records and other portions of their PHR as examples of treatment modalities approved by other medical providers. Plaintiffs’ lawyers may also investigate the potential for utilizing the collective knowledge of the types of treatments suggested online within the patient networking sites as evidence of the standard of care. In essence, the possibility exists to use PHRs as the “expert” to support or reject claims of malpractice.

B. Defamation and Invasion of Privacy
Generally, a claim of defamation requires the publication of a false statement that harms the plaintiff’s reputation or esteem in the community.[18] Accordingly, PHRs which are solely accessible by the individual or upon the invitation of the individual may not create a cause of action for defamation. However, those PHRs that include communication with other individuals or providers may provide the publication necessary to satisfy that element.

Defamation based upon online communication is fairly new. Typically, such claims have involved false celebrity information posted on the Internet.[19] Arguably, where an individual uses a PHR to publish false information, an analogous claim could be pled.[20]

Generally, the tort of “invasion of privacy” encompasses four claims: (1) intrusion upon the plaintiff’s seclusion; (2) appropriation of the plaintiff’s name or likeness; (3) publicity of the plaintiff’s private life; and (4) publicity placing the plaintiff in a false light.[21] The improper disclosure of health information contained within the PHR may form the basis for one or more of these claims. Each of these claims involves the use or disclosure of private information – such as health information – concerning a person. If wrongfully used or disclosed, those responsible for the use or disclosure, as well as those responsible for protecting the PHR, may face potential liability.

C. Discrimination and Improper Disclosure
HIPAA prohibits impermissible uses and disclosures of protected health information. Although individuals are free to use and disclose their own information as they see fit, appropriate firewalls need to be constructed where, for example, employer-sponsored health plans are providing PHRs. Information in the PHR should not flow from the plan to the plan sponsor nor should it be used for employment purposes.

In addition to HIPAA, employers – and possibly insurers – must consider the implications of the Americans with Disabilities Act, the Family and Medical Leave Act, and similar State laws. The laws offer protection to employees from access to employee health information and discrimination based upon that information.

D. Breach of Contract
Despite the disclaimers and protections set forth in user agreements, it may be possible for an individual to argue that some protections arise through the agreement itself. While user agreements tend to be drafted almost entirely in favor of the PHR vendor or provider/plan, these documents may contain limited rights in favor of the individual. The individual could bring an action for breach of those rights in the event of a violation.

E. HIPAA Compliance
Most PHR vendors have taken the position that HIPAA does not apply to them. PHR vendors generally do not qualify as covered entities. Such vendors take the position that they are not business associates because they are not providing services on behalf of covered entities but rather have a relationship with the patients. Moreover, the patient releases information to or creates information in the PHR, and HIPAA does not regulate individuals’ use and disclosure of their own information.

The contrary position is that many of the PHRs are now linked directly with covered entities to allow the health information to be transferred. Several high profile relationships have been announced relating to collaborations between PHRs and medical facilities to provide PHRs for patients.[22] The collaborations should be reviewed to determine whether a business associate relationship has been created.There has been recent activity to expand the reach of HIPAA to encompass PHRs. Federal and State proposals also may address privacy and security concerns separately. In the interim, private initiatives, by the Markle Foundation and others, propose a voluntary framework to protect health information.

F. State Laws
Many States have enacted breach notification requirements and other consumer protections, which raise new issues with respect to PHRs. Some states, e.g., California, have expanded the breach notification rules to specifically cover health information. These regulations must be addressed with respect to PHRs.Finally, many states have promulgated regulations addressing the movement towards health information exchange. Many recognize “record locator services” or other similar entities that may contain health information or act as an intermediary for locating such information.[23] These State laws may be implicated by PHRs.

G. Stark and Fraud and Abuse
The Federal Stark Law prohibits certain referrals for Designated Health Services (“DHS”) by a physician to an entity with which he/she has a financial relationship.[24] In addition, the Anti-Kickback Statute prohibits remuneration in exchange for the referral of a patient for services covered by a Federal health program.[25] The violation of these laws may provide the basis for a claim under the Federal False Claims Act.[26] State laws may provide additional restrictions and prohibitions.

Recently, a number of health plans and systems have begun to offer PHRs to patients and providers. Currently, the Stark exception and Anti-Kickback Statute safe harbor expressly allow only for EHR and electronic prescribing to be donated. PHR donation may not be protected.

In addition to the practical issues associated with the donation and use of PHRs, new avenues of identifying fraud and abuse are being opened with discovery involving PHRs. Federal investigators and qui tam litigators may turn to PHRs to prove treatment that was billed for may not have been provided. In addition, the compilation of information via Health 2.0 raises the specter of data aggregation to establish fraud over a large population of patients.

Conclusion
PHRs bring a new dimension to the debate over how to create an interoperable health information network. The shift of power into the hands of patients could bring about a sustainable model. Before proceeding with the expansion of PHRs, the legal implications that go along with such an adoption should be addressed.

Bob Coffield is a member of Flaherty, Sensabaugh & Bonasso, PLLC in Charleston, West Virginia. Bob is also a Co-Chair of the Privacy and Security Compliance and Enforcement Affinity Group, a part of AHLA’s Health Information and Technology Practice Group.

Jud DeLoss is a principal with the law firm of Gray Plant Mooty in Minneapolis, Minnesota. Jud is also a Vice Chair of the AHLA’s Health Information and Technology Practice Group.

[1] Mr. DeLoss thanks Bryan M. Seiler, a Summer Associate at the firm, for his assistance in this article. Mr. Seiler is a third year student at the University of Minnesota Law School.
[2] National Alliance for Health Information Technology, Defining Key Health Information Technology Terms, April 2008. http://www.hhs.gov/healthit/documents/m20080603/10.1_bell_viles/testonly/index.html.
[3] Report and Recommendations From the National Committee on Vital and Health Statistics, Information for Health, A Strategy for Building the National Health Information Infrastructure, November 15, 2001. http://aspe.hhs.gov/sp/NHII/Documents/NHIIReport2001/default.htm.
[4] ONC-Coordinated Federal Health IT Strategic Plan: 2008-2012 (June 3, 2008), http://www.hhs.gov/healthit/resources/reports.html.
[5] Health 2.0 Wiki, http://health20.org/wiki/Main_Page.
[6] California Healthcare Foundation, The Wisdom of Patients: Health Care Meets Online Social Media, Jane Sarasohn-Kahn, M.A., H.H.S.A., THINK-Health, April 2008, http://www.chcf.org/documents/chronicdisease/HealthCareSocialMedia.pdf.
[7] E.g., Patients Like Me, http://www.patientslikeme.com/; TuDiabetes.com, http://tudiabetes.com/; Daily Strength, http://dailystrength.org/; SugarStats, http://www.sugarstats.com/; Revolution Health, http://www.revolutionhealth.com/.
[8] Sermo, http://www.sermo.com/.
[9] Organized Wisdom, http://organizedwisdom.com.
[10] American Well, http://www.americanwell.com.
[11] change:healthcare, http://company.changehealthcare.com/; Quicken Health, http://quickenhealth.intuit.com/.
[12] Markle Foundation, Connecting for Health, Connecting Consumers Common Framework for Networked Personal Health Information, June 2008; http://www.connectingforhealth.org/phti/.
[13] Christiansen, John R., Why Health Care Information Isn’t Property – And Why That Is to Everyone’s Benefit, American Health Lawyers Association, Health Law Digest, 1999.
[14] Alcantara, Oscar L. and Waller, Adelle, Ownership of Health Information in the Information Age, originally published in Jounal of the AHIMA, March 30, 1998; http://www.goldbergkohn.com/news-publications-57.html.
[15] E.g., 45 C.F.R § 164.524.
[16] See, e.g., Nogowski v. Alemo-Hammad, 691 A.2d 950, 956 (Pa. Super 1997).
[17] See, e.g., Breeden v. Anesthesia West, P.C., 656 N.W.2d 913 (Neb. 2003) (nurse’s electronic note on patient condition which would have prevented administration of anesthesia should have been reviewed by anesthesiologist despite no verbal or handwritten report by nurse).
[18] See, e.g., Mahoney & Hagberg v. Newgard, 729 N.W.2d 302 (Minn. 2007).
[19] See, e.g., Carl S. Kaplan, Celebrities Have Trouble Protecting Their Names Online, Cyber Law Journal (July 30, 1999).
[20] See, e.g., Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988). See also Restatement (Second) of Torts § 577, cmt. k (1977).
[21] See, e.g., Werner v. Kliewer, 238 Kan. 289, 710 P.2d 1250 (1985); Humphers v. First Interstate Bank, 298 Or. 706, 696 P.2d 527 (1985). See also Restatement (Second) of Torts § 652 (1977).
[22] E.g., Google Health with Cleveland Clinic and Microsoft HealthVault with Mayo Clinic.
[23] See, e.g., Minn. Stat. § 144.291, Subd. (i).
[24] 42 U.S.C. § 1395nn(a).[25] 42 U.S.C. § 1320a-7b(b).[26] 31 U.S.C. § 3729.

Health 2.0 Conference

Next week I'm headed to San Fransisco to attend the Health 2.0: User Generated Healthcare Conference.

Looking forward to attending, seeing old and meeting new colleagues interested in the world of health 2.0. I will be involved in the Health 2.0 Accelerator meet and greet on Tuesday (Oct. 21) and will be at the conference and in San Francisco through Friday (Oct 24). If you are attending or just in the area and want to meet up in person shoot me a tweet, wall post, email or call.

The buzz and discussion has started among those attending via the online social networking tools - twitter feed, Facebook page, blogs, etc. Matthew and Indu have also created a separate social network for the attendees - great idea. I plan to live blog and twitter from the conference next week -- so check in next week.

While out on the West Coast I will be following another great event here in West Virginia - CreateWV Conference. I'm sorry I will miss the conference because they have a great line up, will be bringing together the talents and creativeness of West Virginians throughout the state and addressing important issues for the future success of West Virginia.

Thanks to the likes of the Create WV twitter feed, Facebook page, etc. I can stay in touch with those at the conference and will plan to watch some of the post-conference content that will be posted on YouTube, the CreateWV Blog and other West Virginia bloggers live blogging the event.

Watch one of the pre-conference videos on diversity that was just released via twitter by @createwv:

Health 2.0: Stay Focused on the Goals

Ben Heywood, co-founder of PatientsLikeMe, outlines simple (but difficult) goals that those in the health 2.0 space must accomplish. Based on his post I take it that he highlighted these during his keynote address at the second Health 2.0 Northeast conference.

His simple but eloquent message to the health 2.0 community:

I believe we, as the eHealth community, need to focus on two major goals: 1) solve patients’ problems, and 2) create business models that allow us to do #1.

Successful companies must show real and tangible benefits directly to the patient consumer. As one who regularly participates in the health information discussion and debate as West Virginia moves forward with its health information network infrastructure -- I often try to step back and ask, like Mr. Heywood, the simple question, "does this help the patient -- why and how?"

To be disruptive and successful the current crop of creative companies have to show a direct and immediate impact on improving care and quality linked to a reduction in cost or a value proposition that the increase in cost is worth such expenditure.

HR 6898: The Health-e Information Technology Act of 2008

Jen McCabe Gorman at Health Management RX brought attention to a new House of Representative Bill (HR 6898) focused on electronic health information introduced in the 110th Congress by Congressman Pete Stark. The bill was introduced on September 15, 2008, and is currently referred out to committee.

Jen provides some great analysis and brainstorming on the impact of the draft bill in her post, "Breaking News: Congress Wants to Create National eHealthNetwork, Legislate Who Owns Health Data." Well worth a read for anyone interested in health information technology, electronic health information, personal health records, health 2.0 or the future of our health care system.

Jen highlights those sections dealing with who owns the electronic health information. Should it be the government? the provider? the consumer? This key legal concept - ownership of health information -- is a key question to discuss and debate. As I have mentioned in the past (here and here) the consumer health movement may force a change in the traditional legal notion of health information ownership rights.

The draft bill also addresses a variety of other areas - including the regulation of non-covered entities under HIPAA (many of which weren't even contemplated when HIPAA was enacted) who create or handle health information, codification of ONCHIT under HHS and empowering them with various tasks, creating Medicare related incentives for adoption and modifying other sections of the current HIPAA privacy standards. I haven't had a chance to read through the full bill and spend time reading the related materials but look forward to further analyzing.

For more information about HR 6898 (The Health-e Information Technology Act of 2008) check out Congressman Stark's website information about the legislation:

• Summary
• Introduction Statement
• Press Release
• Section by Section Analysis
• Privacy and Security Provisions
• Incentives

To locate the current status of the bill check out Thomas. I suspect that there will be little movement on the bill this Congressional session - but it does give insight into what might be coming down the road.

NY Times Health: Articles On Changing World of Online Health Information

The New York Times Health section in the article, "Logging On for a Second (or Third) Opinion," examines the changing world of online health information search.

As the article points out we are moving from a "search and read" web to a "search, share and interact" web. As Dr. Ted Eytan indicates, we are seeing the "democratization of health care." Patients as consumers are becoming more engaged and knowledgeable through the use of online search and collaboration before and after they visit with a health care professional. Likewise, physicians and other providers are utilizing technology and the evolving social networked web in the same fashion. I agree with the comments of Clay Shirky who indicates patients (aka health consumers) are becoming empowered actors in the health system. The article gives a good overview with links to some of the health care business models evolving in this sector.

Matthew Holt, co-founder of the Health 2.0 Conference, ends the article by stating "the marketplace in information can correct itself over time." He indicates that "the more people you have in the conversation, the better information drives out the worse information." I think there are risks with a socially networked and driven health system but I hope the rewards of improved information, treatment, outcomes and reduced costs outweigh such risks. Time will tell.

A companion article, "You're Sick. Now What? Knowledge is Power," also examines the rise of the empowered health consumer and offers some sage advice on how much information is good, how much is bad and some best practices on using web based health information. The article hits on these key points:

• The goal is to find an M.D., to become one.
• Keep statistics in perspective.
• Don't limit yourself to the web.
• Tell your doctor about your research.

Much of what is discussed in these two articles will the topic de jour at the Health 2.0 Conference next month in San Francisco. I look forward to attending and participating in the ongoing conversation about how technology is changing the health care industry.

100 Best Health Care Policy Blogs and Top 50 Best Health 2.0 Blogs

Thanks to the folks at RNCentral.com for naming the Health Care Law Blog to its list of the 100 Best Health Care Policy Blogs (see #21 under Politics, Legislation and Law category) and the Top 50 Health 2.0 Blogs (#49 under the Health Care Policy and Law category).

Looking over both lists of blogs its a privilege to be listed alongside some of the best health care industry thinkers and writers. If you are new to health blogs or health 2.0 this is a excellent resource.

Is Your Health Care Killing You?

Check out and download for free the EBook, "My Health Care Is Killing Me: a survival guide for the american healthcare consumer."

The book was written by a couple of colleagues, Christopher Parks and Robert Hedricks, health care technology innovators and disruption mavericks who started change:healthcare based in Nashville.

A short interview covering the who, what why about the book. The basic reason for writing the book is summarized by Robert as:

It really began as a way to help our employees – some of whom hadn’t worked in healthcare before – better understand key aspects of the industry and our role in helping consumers regain control over their own healthcare. I began writing by covering some of the basics – providers, bills, insurance, industry terminology – and things just cascaded from there.

Congratulations on completing the book and love the cover photo of the two of you running down the hall. Very appropriate.

UPDATE: Notice the tagged "book cover outtake" photos on Facebook of Christopher and Robert. Fun stuff. I especially the shot to the right for volume 2 - How Our Health Care Is Killing Primary Care Physicians.

Sermo Physicians Launch Doctors Unite Campaign

Can online social networking by health care professionals be the catalysts for group action and change in the health care industry?

Fellow friend and health blogger,Fard Johnmar,at Healthcare Vox explores this question and more in his post, "Sermo Docs Launch An Online Health Reform Movement: Will It Matter?". A current effort social networking campaign lead by the physicians who participate in the physician-only social network Sermo (think Facebook for doctors).

The online effort - called "Doctors Unite" is an open letter to Americans to highlight the challenges physicians face in delivering appropriate patient care and targets three industry groups: insurance companies, government and malpractice attorneys. The counter currently shows over 5,200 signatures by Sermo physicians. You can click on the tabs "Our Story" and "Why Sermo" for more of the back story on the effort. Also check out the Sermo press release.

This effort will be interesting for those involved in the health care industry to watch develop. Will this be the grassroots social networking effort that drives change from the bottom up?

Connecting for Health: Another wave in the shift to consumer controlled health information

The recent announcement of the Common Framework for Networked Personal Health Information by the Connecting for Health collaboration lead by the Markle Foundation is just the next wave in what may be a tidal shift. The tidal shift is one centered on the input, control, ownership, and administration of health information that results from the active and real use of PHRs by consumers.

Those participating in and endorsing the Connecting for Health initiative are a diverse group of health care and technology companies, including Google, Microsoft, Intuit, WebMD, Dossia, BlueCross BlueShield, AARP, AAFP, SureScripts and others.

Whether or not the wave is large enough or just one of many more to come is yet to be determined. The ocean of health information and health information exchange is so fluid these days as we undergo major projects surrounding health information technology at the national level, state level, by HIEs, private industy, etc. For health lawyers - it is a field day for spotting regulatory legal issues and implications. Some of the real life factual scenarios we have been going through as a result of work related to the West Virginia Health Information Network and the NIH2 project remind me of law school exams.

For more insight on the Connecting for Health collaborative check out thoughts by other health care lawyers: Jeff Drummond who talks about the provider "betamax" and "culture fears, David Harlow who raises good questions and applauds the effort to gain public trust. He also looks at whether the recent PHR developments might obviate the need for local HIE infrastructure (with follow up commentary from Micky Tripathi at MAeHC Blog).

Also, Matthew Holt looks at the important health vs. wealth issue underlying the effort and the (non)involvement of the EMR vendors in the process. Jen McCabe Gorman at Health Management Rx makes predications of a possible PHR health app war focused on creating strategic affiliations with health care businesses in an effort to gain market share in the consumer focused PHR space.

Check out the latest developments with a Google News search: "connecting for health".

For another "wave" on the tidal shifting consumer health front from a guy who knows waves - check out Scott Shreeve, M.D.'s post, "Cease and Desist? How about Understand and Resist," at Crossver Health. Scott's post breaks down the issues involved in the attempt by the California and New York Departments of Health to prevent consumers from accessing their own genetic information. More from Matthew Holt.

Another example not unlike the PHR issue, where the current health regulatory structure is not evolving quick enough to satisfy the needs of the consumer focused health technology startups. In this case the consumer focused genetic health 2.0 companies. As Scott ends with, ". . . One intractable issue. Millions of dollars at stake. Tens of millions of people watching. Vegas odds, anyone?"