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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto

AAPS Comments to the American Health Information Community (AHIC)

September 10, 2007

The Association of American Physicians & Surgeons, Inc. ("AAPS") is a non-profit national organization consisting of thousands of physicians in all specialties. Founded in 1943, AAPS is dedicated to defending the patient-physician relationship and the ethical practice of medicine. AAPS is one of the largest physician organizations funded virtually entirely by its physician membership. This enables it to speak directly on behalf of the ethical service of patients who entrust their care to the medical profession. The motto of AAPS is "omnia pro aegroto," or "all for the patient." AAPS files amicus briefs in cases of high importance to the medical profession. See, e.g., Stenberg v. Carhart, 530 U.S. 914 (2000) (citing AAPS's submission); Springer v. Henry, 435 F.3d 268, 271 (3d Cir. 2006) (citing AAPS); United States v. Rutgard, 116 F.3d 1270 (9th Cir. 1997) (reversal of a sentence as urged by an amicus brief submitted by AAPS).

AAPS is greatly concerned about the negative impact of electronic medical records on the patient-physician relationship, and especially patient confidentiality. Once information is entered into an electronic database, it can virtually never be fully deleted or destroyed. Backups exist; deleted information remains on hard drives; and copies are often made and distributed to locations that cannot be identified later for retrievable purposes. Patients know this and fear unauthorized disclosure of their highly personal medical information to employers, insurance companies, ex-spouses, and even political adversaries.

The use of electronic medical records by a doctor can have a profound chilling effect on whether a patient seeks medical assistance, and what he or she discloses if medical assistance is obtained. No electronic medical system should be considered or proposed unless there is an airtight protection of patient privacy designed in the system from the very beginning, to assure that a patient retains complete and absolute control over third-party access to his or her medical information. If such airtight protection is not possible in an electronic medical record system, then no such system should be supported by our government or any public-private partnership.

AAPS is also concerned about the potential for improper monitoring of physicians by insurance companies, employers and government with respect to medical care that is outside of the ordinary. In any statistical analysis, there are "outliers" that depart from the norm, often properly so. A cardiac surgeon who specializes in high-risk cases has a higher mortality rate than if he were to specialize in low-risk cases. Rationing of care for high-risk patients could easily result from an electronic medical record system that permits monitoring of physicians and facilitates comparison to their peers without proper recognition of the wide variation in the difficulty of medical problems. Moreover, even if patients were all alike, innovation requires departure from the norm. We could lose the benefits of innovative treatments if electronic medical systems discouraged doctors from trying them. Any design of an electronic medical system must have protections against monitoring of physicians that might result in limiting or rationing care, or discouraging innovation.

Finally, the high costs of electronic medical records in financial terms must be fully addressed. It is easy to underestimate the costs of converting a simple paper-based office into an electronic office that requires constant software updates, vigilance against computer viruses, retention of programmers and consultants, and unexpected failures in the technology. Such estimates should not be accepted at face value from organizations interested in selling these systems, but rather must be undertaken by a competent, independent evaluator.

The structure of the successor to the American Health Information Community (AHIC) should recognize the above issues and ensure adequate representation of these viewpoints expressed by AAPS, which are widely shared within the physician and patient communities. Organizations that are independent of funding by insurance or other industry sources must be fully represented in the new organization being established to succeed AHIC.

Thank you.

Andrew Schlafly
General Counsel
Association of American Physicians and Surgeons