Electronic Health Records

Adoption & Implementation News

EHR replacement gone wrong: Who owns patient data?

By Jennifer Bresnick

- What do you do when an EHR contract ends, but the vendor won’t let you access your patients’ data until after a lengthy court battle over a missing bill?  Does a vendor have the right to withhold records for any reason, even if the information is stored in a proprietary format?  Who owns the data?  Those are the questions facing Milwaukee Health Services in Wisconsin after an EHR replacement turned into a tussle between lawyers, with the records of 40,000 patients as the prize.

The Milwaukee Journal Sentinel reports that Milwaukee Health Services (MHS) was seeking to replace the EHR system provided by Business Computer Applications, Inc. (BCA) after their five-year contract ran out in June.  MHS asserts that the BCA system was never fully functional, and that the Atlanta-based company kept requesting money to fix the system with no results.  MHS says it has paid $3.1 million over the length of the contract, but decided to switch EHRs this month after continual dissatisfaction.

BSA, meanwhile, claims that the health system owes $285,000 in unpaid fees, and until they receive the amount due – or a “fair compensation” access fee of $200,000 – they will not allow physicians to view any patient data stored in their system.  Naturally, the impasse ended up in court, with the health system claiming that the fee was simple “extortion”.

“When the contract expired on June 30, with no extension contract having been signed, they lost the access right to the proprietary software,” said Dave Scott, a spokesman for BCA.  “They were told they (BCA) could offer them a variety of extensions. They ignored and refused all of that.  If you want a smooth transition, you are going to work with your vendor.”

But does that vendor have a right to put patient safety at risk by denying access to critical records?  Does BCA own the information simply because they have been storing it in their system?  Or does it belong to the patients themselves, or the health system that has collected it?  This is a critical issue for all providers to consider as EHR replacements become ever more common, and smaller vendors consolidate or fold due to increasing pressures on the market.

It is unclear whether there was any stipulation in the expired contract addressing data ownership or what would happen to the information after the agreement ended, but negotiating such a clause could prevent ugly situations like this from developing in the future.

MHS states that withholding the data is in violation of a Wisconsin state law that requires providers to release records to patients upon request.  Patient data is certainly a valuable a business asset for both a vendor and a provider, but playing tug-of-war with health information crucial to people’s lives is dangerous and damaging for everyone involved.



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