# Presentation: 277298

## NATIONAL GOVERNORS ASSOCIATIONSTATE ALLIANCE FOR E-HEALTH

**Legal Issues for ****Health Information Exchange****Legal Standards and Liability**
**February 26, 2007**
**Howard A. Burde, Esq.****Blank Rome LLP****One Logan Square****Philadelphia, PA  19103-6998****215-569-5500**

## Legal Issues Confronting Health Information Exchange

- Privacy/Security
- Corporate/Finance
- Antikickback and Stark
- Tax
- Intellectual Property
- Liability for Use and Disclosure

- National Governors Association State Alliance for E-Health

## Focus on Legal Standards and Liability

- Legal Presumptions/Policy Implications
- Public Health
- Privacy (Rules for Disclosure and Use)
- Liability

- National Governors Association State Alliance for E-Health

## Legal Presumptions in Public Health

- Vaccination
- Organ Donation
- Fluoridation of Water
- Implications for Public Health?

- National Governors Association State Alliance for E-Health

## Legal Presumptions for Use and Disclosure of Health Care Information

- Information May Be Sent or Received:
- With Consent
- Without Consent
- Over Objections
- Implications for Public Health?

- National Governors Association State Alliance for E-Health

## Liability for Inappropriate Disclosure or Use

- Three Parties
- PHI Contributors/Originators
- Infomediaries
- PHI Users

- National Governors Association State Alliance for E-Health

## Liability for Inappropriate Use/Disclosure

- Federal Sanctions
- State Sanctions
- Private Right of Action
- Source of Action
- Breach of Contract
- Tort/Violation of Common Law Duty
- Violation of Obligation under Statute

- National Governors Association State Alliance for E-Health

## Liability forAdverse Event From Use of Data

- Medical Malpractice
- Primer
- Standard of Care
- Breach
- Causation of Injury

- National Governors Association State Alliance for E-Health

## Liability for Adverse Event From Use of Data

- Medical Malpractice
- Who can be party?
- PHI User - Provider
- Infomediary - HIE
- PHI Contributor - Prior Provider
- Issues
- Quality/Accuracy/Integrity
- Impact of False Claim

- National Governors Association State Alliance for E-Health

## Liability for Failure to Use Data

- Implications of Available Information
- Duty to Consult:
**Yes:**	_Primus v. Galgano_
**No:**  	_Suniga v. Eyre_
-         	_Susnis v. Radfar_

- National Governors Association State Alliance for E-Health

## Liability – The Inexorable Progress of American Jurisprudence

- Innovation Leads to New Standards of Care
- _Helling v. Carey_ (Glaucoma Testing)
- _Das v. Thani_ (Fetal Monitoring)
- _Shannon v. McNulty_ (Nurse Call Center)

- National Governors Association State Alliance for E-Health

## Summary

- Goal is to use HIE to improve functioning of health care system and quality of care provided.  Current and evolving law supports that development.
- Legal presumptions can be structured to accomplish the goal while preserving individual rights.
- Standard of Care will evolve to mandate consultation of available PHI.

- National Governors Association State Alliance for E-Health

## Recommendations

- Focus on getting the right information to the point of care for use in real time.
- Avoid false choice of interoperability versus privacy.  The structure you create will reflect values choices.
- The right to consent does not protect privacy or support healthcare any more than the right to refuse.  The legal presumption determines how the same right is exercised.  Exceptions are important but should not be the rule.
- Limit the exposure of early adopters, infomediaries and good faith users.  They are creating a better health care system for everyone.

- National Governors Association State Alliance for E-Health