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Electronic Medical Records (EMR) or Electronic Health Records (EHR): The Difference and Legal Implications

Filed Under: , EMR Regulations
September 19, 2023 by Brian

Although the terms are frequently used interchangeably, electronic medical records (EMR) serve a different purpose than electronic health records (EHR), especially within a legal context.

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What is the difference?

Simply, an electronic medical record is the digitized version of a patient’s medical data recorded by and held by a single healthcare organization. An EMR can include a patient’s treatments, immunizations, prescriptions, and test results from the particular practice in addition to their billing and insurance information, demographic information, and reported medical history. This data helps a medical practice stay organized and equipped to provide patients with appropriate care. However, EMR documents do not travel with a patient from practice to practice which is why, for example, one may fill out a health history form at each new office they visit. An EMR partially relies on a patient’s willingness to report and disclose certain information to a given health provider which may limit the care they receive. Patient information including diagnosis codes, admission and discharge notifications, and provider notes can be shared between healthcare organizations, insurance companies, and post-acute care facilities. However, external information is often viewed with caution by recipient providers and may not always be included in a patient’s chart at that institution

An electronic health record includes one’s health data across multiple medical practices which provides a more holistic report of the patient’s history than an EMR. Instead of being a tangible report of information contained within an EMR, an EHR is an idealistic concept of a longitudinal patient record that assumes all of a patient’s health information. In reality, the EHR is a challenge to fully obtain since it is dependent on how much information each practice releases and includes. Although unlikely, (aside from cases involving a newborn baby), a patient’s EMR doubles as their EHR if they have only been seen at hospitals or by clinicians linked to the same EMR software instance for the patient’s entire life.

The transferability of an EHR allows each provider to be updated on the patient’s treatment, prescription, and diagnosis history from their past providers. EHR data “can be created, managed, and consulted by authorized clinicians and staff across more than one healthcare organization,” according to a statement by The National Alliance for Health Information Technology. This data is compatible and collaborative in addition to being “designed to be accessed by all people involved in the patients[’] care—including the patients themselves,” according to the Office of the National Coordinator for Health Information Technology.

Defining the LMR

According to a report published by the National Library of Medicine, a “patient’s paper chart was that patient’s LMR by definition, even if critical data was omitted or irrelevant data was included.” Given the digitization that has created today’s EMR and EHR distinction, a patient’s LMR can include a range of edited and original information. 42 CFR 460.210 sets federal regulations for a medical record’s minimum content. Beyond this standard, The American Health Information Management Association(AHIMA) explains that each health organization defines what its LMR includes using a multidisciplinary team approach “to identify what information constitutes the official business record of an organization for evidentiary purposes.”

The electronic nature of these documents enables obscure editing that would previously be recorded by hand. This gives rise to the electronic audit trail that is increasingly prevalent in courtrooms. An audit trail is an objective accounting of user actions or processes within a digital system. It records the activity involved in a patient’s medical record, noting every chart access, functionality, provider communication, clinical entry, modification, and deletion from the legal medical record. Federal law outlines regulations for the proper use of EMR systems specific to audit trail tools. 45 CFR 164.312(c)(1) & (2) requires healthcare providers to “implement policies and procedures to protect electronic protected health information from improper alteration or destruction” and to implement “mechanisms to authenticate electronic protected health information…to corroborate that electronic health information has not been altered or destroyed in an unauthorized manner.” Additionally, 45 CFR 164.316 requires healthcare providers to “document the policies and procedures for the required audit trail specifications.”

Legal implications

Typically, an EMR is requested to serve the plaintiff’s case if the defendant is a particular medical practice since a specific patient experience or interaction with a health system or clinician is often in question rather than their entire medical history. Further, according to the AHIMA, “the documentation that comprises the legal health record may physically exist in separate and multiple paper-based or electronic systems” which complicates the development of a complete EHR. The University of California proposes that since “patient medical information is contained within multiple electronic records systems in combination with financial and other types of data,” their policy “defines requirements for those components of information that comprise a patient’s complete medical record.”

With the inherent complexity, variety of user interactions, and significant volume of information available in today’s electronic medical record software, there is high likelihood for information to be changed or excluded from a medical practice’s disclosure to the plaintiff, or in some cases the defendant. Perhaps the practice’s LMR policy excuses them from including audit trails in their productions by default or from storing internal clinical review documentation in a separate system, but that doesn’t preclude savvy attorneys from making precise production requests to elicit additional EMR information beyond the standard LMR production. This dispersed storage questions the integrity of a reported LMR compared to the holistic and honest paper record of the past. It is necessary for all attorneys to ensure that their LMR production includes all information required by law, and then know exactly what and how to ask for supplemental information that could make or break the case for their clients.

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