Electronic medical records in litigation and their increased relevance

Electronic Medical Records in Litigation and Their Increased Relevance EHR adoption is much promoted because of its many benefits such as smooth and accurate medical records review. They have great relevance in litigation.

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Paper medical records are on their way out and electronic records are on their way in.

Electronic health record adoption is heavily promoted, highlighting its many benefits including its assurance of smooth and accurate medical records review. In 2009, the HITECH Act (Health Information Technology for Economic and Clinical Health Act) was enacted with a view to correct shortcomings in the protections for and security of electronic medical records. Medical record keeping has changed alongside the laws and regulations associated with electronic medical record keeping, and this naturally brings important changes in what information may become evidence in litigation, and how. Lawyers litigating personal injury claims must be aware that the HITECH Act created the right for patients to receive electronic copies of their PHI (protected health information), including the related metadata (information regarding how the data was entered, accessed, and whether any information has been changed.

Features of EMR Relevant to Litigation Here are some important features of the electronic health record that are significant in litigation.

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When medical records are needed to prove liability or when there is any doubt regarding the credibility of medical entries, the EMR provides data that does not transfer to the printed form.

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In an EMR system, the information displayed on the computer screen may differ according to the user. The nurse may not be seeing the information displayed to a physician. The forms and dropdown menu may differ by user level. In other words, information that can be accessed varies according to the authorization credentials of the user.

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The HITECH Act extends the protections ensured by the HIPAA Act beyond the three original covered entities, i.e. health plans, healthcare clearing houses, and healthcare providers) to third parties who come into contact with PHI. In addition, HITECH also has the provision that “the individual shall have a right to obtain from such covered entity a copy of such [protected health] information in an electronic format."

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The HITECH provides a method for attorneys to obtain an electronic copy of a patient’s medical records. This is via the provision that if the patient chooses, he/she may “direct the covered entity to transmit such copy directly to an entity or person designated by the individual, provided that any such choice is clear, conspicuous, and specific.”

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If the covered entity is required to transmit the copy of PHI directly to another person designated by the individual – the individual must provide the request in writing, sign it, and clearly identify the designated person. He/she should also specify where the copy of PHI is to be sent.

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On receiving a request for such transmission of PHI, the covered entity must act within 30 days of receipt.

Metadata – the Most Important Evidence Metadata made available by the electronic medical record makes it very significant in litigation. This can be used in discovery. Metadata is used to determine the source of a particular information, who created it, and who accessed it. The four metadata categories are: •

Application metadata

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Document metadata

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Embedded metadata

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File size metadata

Among these, document metadata and embedded metadata are most important for attorneys.

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Document metadata provides data regarding users who accessed the information, the action taken (whether they just viewed it, edited it, or took a printout), the date and time of access, and also how long the user was on the system.

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Embedded metadata provides information about versions and tracks changes to the information in the medical record.

The audit trail which shows exactly when an entry was made in the EMR, who made it, and how long they had the file open, is the most significant metadata information. You can request for a printout of the audit trail or obtain it in PDF form. Since the audit trail is captured automatically by the EMR system, it should correspond to the patient’s medical chart, entry by entry. A properly done, bit-for-bit copy of all sectors of the media involved in preparing the medical record – otherwise known as a forensic image of the electronic record -- can provide more helpful metadata. Such a copy can reveal whether any media files have been deleted, or if any renumbering has been done to the remaining files in an attempt to conceal the deletion.

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A CCD Output Is the Need of the Day A true digital record is considered ideal for use in litigation. However, the “proprietary� nature of particular EMR systems makes it impossible to view the record created in one EMR system on another system. It is advised that reliable EMR systems should have a CCD (Continuation of Care Document) output so that it can be viewed by other providers who may be using different EMR systems.

With paper medical records transitioning to their electronic counterparts, attorneys using these as evidence in medical litigation as well as their partnering medical review service providers must be aware of the changes to the HIPAA, the HITECH Act, the nature of the EMR and the capabilities of computer forensics. It is also important that the medical records can be obtained in a reproducible digital format so that the process of medical records review and extraction of the required information is streamlined.

www.mosmedicalrecordreview.com

(800) 670 2809