This issue always arises in medical areas, especially hospitals. Sometimes, the possible unfavorable legal implications of computerization are an excuse for not computerizing, although increasingly weaker. Sometimes the subject highlights the inadequacy of the current legislation, still several decades behind reality.
For example, at a recent symposium in the Italian Hospital of Buenos Aires, a doctor from this advanced pioneer center in Medical Informatics, complained that as a result of a court case, a lawyer asked to seize the patient’s medical history, for which the judge wanted to take a complete server from the Data Center of the Hospital. This, regardless of the damage caused to the tens of thousands of patients whose stories resided on that same server.
It was easier to always have a backup that pretend to change the law. I would like to know what the judge would have done if the data resided in a server located abroad. Was he going to ask the Foreign Ministry to make a warrant for a foreign judge to mail a web server with a RAID of twenty hard drives? Absurd.
Returning to the legal issue. We extract some paragraphs from the article published on the site of El Cruce Hospital, one of the state leaders on the issue: First of all we mentioned Law 26,529 on November 19, 2009, referring to clinical data, still talking about paper support. It refers to the necessary confidentiality, and emphasizes that the data is the property of the patient.
Whenever a patient requests a medical history, the institution must deliver a certified copy within 48 hours. If not, you are authorized to file an appeal for Habeas data. The enactment of Law 25,506 of Digital Signature in 2001 began to fill a large part of the legal vacuum created by providing a regulatory framework for new technologies related to employment. of the digital or electronic signature, which today have a legal value. Before the law of Digital Signature, any digital documentation did not have the character of a document that it does now have.
According to the legislation, a digital document is understood as “the digital representation of acts or events, regardless of the support used for its fixation, storage or archiving”. They are then equated to paper, media such as hard drives, compact discs, diskettes, etc. The Digital Signature Law is the legal element that makes it possible for the computerized medical record to be acceptable from the legal point of view. Next, the article it mentions the requirements that the digital medical record should theoretically fulfill, to which I add in bold my own comments:
– Always readable – unless it is encrypted
– Does not allow blank spaces or alteration of the order of the seats – unless a superuser accesses the original database without appropriate backups
– Always signed – unless the user is not real, or has not signed digitally.
– Always with date and time – unless the date of the PC is altered, which is easy and possible.
– Always complete. – Completeness is always relative.
– Corrections, scrapes, aggregates, etc. are avoided. – not always
– Avoid anticipatory measures, such as judicial seizure, since by digital signature, the identification of a person and the authenticity of the document is guaranteed, and the measure is therefore unnecessary. As I mentioned before, it does not prevent kidnapping judicial
– For the same reasons, it is not necessary to judicially request the recognition of the signature of the professional who has digitally signed in the clinical history. Well!
– As the computerized medical history has the value of an original, when the patient requests a copy of she, as it is her right, (either during her hospitalization or her discharge), and afterwards the loss or loss of the one that is in the power of the establishment or professional will be produced, there will be, until the moment in which the loss, certainty about the data recorded in the digital medical history that the patient has in assumption.
This is an advantage of technology. So, here is a mix of ideal and real facts. Computerization allows things to be done ideally, but there is always a compromise between doing things legally and doing good medicine. Sometimes the times are not enough to record all the data in the clinical history, following good practices, signing digitally, making a backup copy and avoiding spelling mistakes. In the interim, the patient got bored and went home, or got sick worse than before.
However, it is necessary that someone knows how to do things right, and that the system allows it. Then the doctors will do what is possible and reasonable, within the circumstances. This topic is very broad, and surely we will continue to expand it.