Resources

1. Objection: The audit trail is too burdensome to collect or produce
   • Hospitals employ highly trained IT staff, including database engineers and technicians, whose principal job is managing the hospital’s databases and running queries against them; producing audit trail reports is an ordinary function of this job and does not take clinicians away from their patient care duties.
   • Defendants using EMRs must keep these logs, provide access to them and demonstrate compliance with these statutes as required by law to maintain their federal accreditation, so there is already a maintenance and retrieval process in place for audit trails, which should be described in policy manuals.
   • The audit trail query can be exported into an electronic format for use–usually a spreadsheet–thus there is no burden of printing a voluminous record.
2. Objection: The audit trail is not part of the medical record.
   • Because the audit trail is metadata about the medical record, it is undeniably part of the record. In fact, it cannot be separated from the EMR, because every time someone accesses the record, a corresponding entry in the database is generated, tracking access.
   • This data is an integral part of the record and provides direct evidence about the care your client received from the facility and the individual medical providers. This data is a more accurate record about the care that was rendered than the chart alone.
3. Objection: The audit trail is irrelevant.
   • The audit trail is the only objective account of when your client’s data was viewed and charted. It can give you a list of every person whose credentials were used to access the chart, which will reveal potential witnesses who were not apparent from the records themselves.
   • The timing of when providers looked at test results or made entries often becomes a critical issue. Just as the EMR provides a more accurate account of what happened with the patient at the time in question than recollections years later during litigation, the audit trail gives a more precise snapshot of who manipulated the record, when and for what purpose.
   • Because providers cannot document every detail associated with patient care, the audit trail often fills in gaps about undocumented occurrences, such as when discharge instructions were printed, when the doctor viewed test results, or whether they did so from home or at the patient’s bedside.
4. Objection: Portions of the audit trail are protected on the basis of peer review and attorney work-product privilege.
   • In cases of EMR alteration or after-the-fact change, an unredacted audit trail would be the best form of evidence to prove the plaintiff’s case.
   • The audit trail is part of the medical record, and the peer review privilege does not protect it from disclosure as an “original source” document
   • Audit trail information as a result of defense counsel’s review of the record should not be considered “work-product” and subject to privilege because it was not solely created in anticipation of litigation.
5. Objection: The plaintiff’s informatics expert witness lacks adequate qualifications.
   • It can be successfully argued that the expert must have some prior working knowledge either as a practitioner or consultant on the specific EMR system in use by the defendant and its specific audit trail; however, you can move to request a defendant’s database manager that possesses the knowledge, skills and credentials necessary to assist your expert during their examination.
   • Courts have rendered decisions that expert testimony can be precluded if the expert is not supported by proper methodology; thus evidence of alteration or spoliation of the patient record should be based on detailed audit trail data that includes specific the actual data entered along with all the metadata and compared with the medical records produced.
   • Utilize your expert to support your research, interpret and provide strategic insights into your case; leverage them to connect with professionals that have qualified experience and could testify to facts supporting your arguments.
   • Metadata doesn’t lie–adhere closely to the Requesting Audit Trails steps above to produce evidence that a rational jury can conclude in support of your claim.