/
ABA Health eSource
June 2009 Volume 5 Number 10

Electronic Medical Records: What are some of the Practical Issues Lawyers
Should be Aware of During Discovery and Litigation?

By Ralph C. Losey, Esquire, Akerman Senterfitt, Orlando, FL
and Kristen A. Foltz, Esquire, Akerman Senterfitt, Tampa, FL

AuthorAuthor

The health care industry is going electronic, dramatically impacting both hospitals and lawyers alike. The switch to electronic medical records allows for easier and faster charting, but practical problems arise when systems crash or fail to update patient records in real time. Problems also arise in the integration of paper records into the various electronic databases and bridging the awkward hybrid stage when both paper and electronic records must be reviewed. These practical problems can in turn general legal problems for health care attorneys, particularly litigators, because they impact the effective and efficient discovery of patient medical records.

Paper Version of a Digital Screen?

From a litigator's perspective, electronic records severely complicate a health care provider's deposition. Many of the electronic medical record systems are designed with interactive drop-down boxes where practitioners can select from a variety of options. These systems were designed for health care workers, not their attorneys. Thus, traditional methods of reviewing paper medical records must be reexamined or eliminated. If utilizing a paper print out of the electronic record, an attorney must carefully review each individual page because what appears on the health care worker's interactive computer screen is often not the same version that is printed. How does one depose a nurse or doctor who is forced to interpret a paper print-out that does not resemble what he or she viewed on the computer screen at the time of entry? Hospital lawyers can ease the pain and increase the witness's effectiveness through adequate preparation, specifically focusing on variations between the paper pages produced by the computer system and the interactive interface initially utilized by the health care professional. Another option is to have access to a computer during the deposition. The solution may be to use computers and native files throughout the process, but how many lawyers and courts are ready for this?

Charting by Proxy

Charting by proxy is another problem that has surfaced as a result of electronic medical records. This occurs when a health care practitioner enters data in the electronic chart on behalf of another practitioner. Frequently, the person actually performing the procedure, assessment, or administration of medication, is not the individual documenting such activities. Lawyers need to be aware of this as it may prove problematic when examining a witness. You may not want to question a witness who merely entered data and was not actually the person that administered the medication, performed the tests, etc. Again, communication and review of the records beforehand by the attorney and, if appropriate, the individual to be deposed, is essential.

Late Entry

Late entry of data is also a problem, as the system may only log the actual time the information is entered and not when the treatment occurred. Such delays may significantly complicate the preparation of a time-line, since the time stamped on the record does not necessarily reflect when the procedure was actually completed. How does a lawyer explain to the jury when events actually occurred versus when the data was entered? How does one prove that events happened at the time the witness says? Also, one might make the argument that such records represent fraudulent documentation of the medical care provided to a patient who could be a potential plaintiff.

Destruction of Original Documents

In the arduous paper to electronic conversion process, the original documents are scanned into a system and then shredded/destroyed. As you might imagine, this causes a plethora of complications. Some paper documentation is illegible, but once the originals are destroyed there is no way to recover the data. This problem will be resolved for electronic records going forward because all data will be entered into the databases directly. If a scanned record is illegible and the original has been destroyed, a spoliation argument could be made, setting dangerous precedent, and creating unnecessary liability for health care professionals. The degree of success of the spoliation argument, will be determined by the demonstrated willfulness or bad faith, if any , of the party responsible for the loss of the evidence, the extent of prejudice suffered by the other party or parties, and what is required to cure the prejudice. 1

Further, parties should not "destroy specific stored information that it is required to preserve." 2 Attorneys should advise clients who are converting from paper records to electronic, to not be hasty in the destruction of the original documents. If litigation concerning the records is reasonably anticipated, then they may have a duty to preserve this potential evidence even before a suit is actually filed. 3

Error Correction

Another concern is the correction of errors made on the face of the electronic medical records. People make mistakes. With paper records, a simple line crossing out the incorrect information with initials is sufficient to notify the reader that a change has been made. However, with an electronic system, it is far more complicated. Rather than permanently deleting the incorrect entry, what if records are maintained showing the error was corrected? How does one indicate that a change has been made to an entry? Will there be an audit trail or accessible metadata should litigation arise? Even if there is an audit trail showing who, where, why, and how corrections were made, lawyers must be prepared to argue that these corrections do not reflect carelessness on the part of the provider.

Lawyers should also be aware that some courts will mandate that a full "forensic copy" of hard drives be examined if there is evidence of alteration of information. 4 Nonetheless, if a request is broad in nature and the claims vague, a court may not order a complete forensic copy. 5

Copy/Paste Problems

The copy/paste function available in some electronic systems is also problematic. In many instances, copy/paste can increase provider efficiency by allowing a practitioner to copy/paste patient information into new records, however, concerns arise regarding proper designation of the identity of the original author, determining what portions have been copied, time stamping of the entry, and the potentially damaging trail of metadata. Who does a lawyer depose - the original author or the person who copied and pasted the entry? Also, what if the condition described in the entry is no longer applicable, but someone copies and pastes it into another section in order to save time? Attorneys should advise their health care practitioner clients to be wary of relying solely on pre-existing electronic records. Alternatively, attorneys can advise their hospital clients to selectively "turn off" or restrict this feature from their electronic medical record system to avoid additional liabilities of this nature.

These are only some of the problems posed by the digitization of medical records. The solutions are complex and evolving and there is no "one-size-fits-all" solution. There are, however, a few practical pointers attorneys could relate to their provider clients that may help them avoid serious mistakes and help attorneys during litigation:
  1. Hire an electronic medical records coordinator and have him or her trained by experts.
  2. Know what electronic information the provider has, where it is stored, how it is stored, and who has access to this information.
  3. Establish an electronic records preservation plan to quickly implement "litigation holds." This should include all paper, electronically stored information, correspondence, email, text messages, off-site storage, cloud computing, and twitter. The nature of these materials changes every day, and clients must be keenly aware of their litigation hold policies to avoid unnecessary liability.
  4. Establish and/or regularly update an electronic records retention and destruction policy, based on the clients' industry standards, for all electronic information and train employees (especially practitioners) to follow it.
  5. Be aware of how the electronic medical records system operates. Have a designated person who serves as both an expert and "clearinghouse" for the performance of all audit trails and similar searches in the event litigation arises. Stress to all employees how their entries (and changes) will be reflected in the system and how they could be used against them during future litigation.


1 The security regulations are found at 45 C.F.R. parts 160 and 164, subpart C (“Security Rule”); the privacy regulations are found at 45 C.F.R parts 160 and 164, subpart E (“Privacy Rule”).
2

2006 Committee Notes to Federal Rule of Civil Procedure 37(e).
3 Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 2007 WL 1585452 (D.D.C. 2007); The Sedona Conference Commentary on Legal Holds: The Trigger & The Process (August 2007 Public Comment Version).
4 Balboa Threadworks, Inc. v. Stucky, 2006 WL 763668 (D. Kan. 2006).
5 Ameriwood Industries, Inc. v. Liberman, 2006 WL 3825291 (E.D. Mo. Dec. 27, 2006).

The ABA Health eSource

is distributed automatically to members of the ABA Health Law Section . Please feel free to forward it! Non-members may also sign up to receive the ABA Health eSource.