have the potential “to reduce errors, improve patient care, facilitate clinical
coordination, and monitor care quality.” 41
In the United States, health IT investment lagged in the healthcare system
until the Health Information Technology for Economic and Clinical Health
Act (HITECH) was passed. 42 HITECH exponentially increased the adoption
of EHRs by providing incentives through Medicare and Medicaid for
physicians, hospitals, and certain other providers to invest health information
technology. 43 At the same time, HITECH required meaningful use of such
technology as a condition of payment, and providers who fail to meaningfully
use EHRs are subject to a Medicare payment penalty. 44
B. Patient Generated Information
In addition to clinician-generated data collection, more health data is
coming from patients and consumers themselves.45 Rapidly evolving
technology, such as wearable devices and mobile health applications, 46 allow
Katherine Drabiak-Syed, Granular Control of EHRs to Overcome Fragmented Disclosure
Law, 10 INDEP. HEALTH L. REV. 39, 40–41 (2013) (“The information contained in an EHR
gives providers a comprehensive reference of the patient’s full medical history so providers
may make more efficient and informed decisions during the course of care such as whether to
order a test of procedure, whether a particular medication would counteract with any of the
patient’s current medications or drug allergies, and cross reference relevant information in the
patient’s medical history. The aggregate information and its availability to providers decrease
the number of tests to which the patient is subjected and lowers the risk of potentially
problematic drug responses. EHR systems also offer the potential to provide clinical decision
support to physicians by checking patient medication interactions, providing test
recommendations, or offering suggestions for treatment options based on best practices
41. Drabiak-Syed, supra note 40, at 40–41.
42. HITECH Act Enforcement Interim Final Rule, U.S. DEP’T HEALTH & HUMAN SERVS.
43. Ashish Jha et al., Use of Electronic Health Records in U.S. Hospitals, 360 NEW ENG.
J. OF MED. 1628, 1628 (2009); see generally American Recovery & Reinvestment Act of 2009,
Pub.L. No. 111–5 §13001 (2009); Andy Slavitt & Karen DeSalvo, EHR Incentive Programs:
Where We Go Next, THE CMS BLOG, https://blog.cms.gov/2016/01/19/ehr-incentive-progr
ams-where-we-go-next (last visited Nov. 11, 2016) (“We’ve come a long way since then with
more than 97 percent of hospitals and three quarters of physician offices now wired.”); see
also New Survey Shows Nearly All U.S. Hospitals Using Certified Health IT to Manage Patient
Care, HEALTHCARE SCENE NEWS (May 31, 2016), http://www.emrandehrnews.com/tag/karen-desalvo/ (noting a nine-fold increase in hospitals’ adoption of EHRs since 2008).
44. American Recovery & Reinvestment Act of 2009 §4101, 42 U.S. C. A. § 1396b (West
2009). For a discussion of Medicare payment penalties in relation to EHRs, see CTRS. FOR
MEDICAID & MEDICARE SERVS., EHR INCENTIVE PROGRAM 19–25 (2015), https://www.
45. Michaeli, supra note 5.
46. Apps and Wearables, supra note 36 (noting half of all smart phone users have used a
health app on their phone).