A key provision of the American Recovery and Reinvestment Act of 2009 has the potential to dramatically increase health-care providers’ legal liability. The Recovery Act requires health-care providers to demonstrate the “meaningful use” of electronic medical records in order to maintain their Medicaid and Medicare reimbursement levels. As a result, the rapidly increasing use of electronic medical records is a double-edged sword for health-care providers.
On one hand, electronic medical records offer more efficient and economical records access, resulting in cost savings for health-care providers and better patient care. On the other hand, they are susceptible to hacking and inadvertent disclosures. Hackers have targeted health-care providers and, as recently as August 2014, more than 4.5 million patients’ Social Security numbers, contact information and birth dates were stolen from a multistate hospital system. As the number of hacking attempts continues to increase, some courts have displayed a willingness to allow plaintiffs to bring claims for negligence and privacy violations against health-care providers under state law. In the process, those courts have rejected the providers’ arguments that federal law preempts those claims.
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