a doctor or lawyer looks at the audit trail of electronic medical record

What to know about EMRs in Discovery

Filed Under: , Best Practices
January 5, 2024 by Jake Jenkins

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EMRs Enhance Legal Insight

Electronic medical records (EMRs) can impact medical malpractice litigation by increasing the availability of documentation and facts that can prove or defend a malpractice claim. EMR data that comprise every single electronic transaction including timestamps of clinical activity, input of orders, etc., are discoverable in civil trials. This can very well increase the possibility of prosecutors discovering evidence of malpractice among a team of providers.

Patient records illustrate current and past health care provided to individuals, information that can be essential in legal proceedings. Institutional policies, the type of provider and care, and the habits and communication skills of specific physicians all play a role in what information you can expect to receive in a medical record.

In the context of litigation, EMRs would make things easier and more transparent to all parties involved. In some cases, that may be the case, but EMRs pose some interesting and potentially important challenges; they contain sensitive and personal information which makes adherence to the Health Insurance Portability and Accountability Act (HIPAA) regulations very important. Failure to secure patient data within EMRs can lead to severe legal repercussions, including fines and reputational damage. Providers must implement data encryption, access controls, and audit trails to ensure HIPAA compliance and protect patient privacy.

EMRs generally contain slightly more information, in terms of volume and type, than paper records. This added information and functionality brings an interesting challenge, what is considered a complete medical record? Paper records are often limited to the time for which the patient was treated. EMRs have the potential to extend that period, either by facilitating back-linking with a patient’s previous EMR records or by linking with external sources that contain more history like lab providers or a specialized clinic.

Who, When and Why

There are some normal and reasonable clinical reasons to be able to edit and revise EMR data entries, to ensure record accuracy, or to update a field left blank due to lack of data, and most EMR systems will permit these revisions. A potential challenge in litigation and research is the accuracy and transparency of such edits in audit trails and other logs. For example, some facilities may have modified systems to provide easy updating and modifications, whereas other fields may be more controlled and require steps more likely to establish a clear accounting of the “who, when, and why”. While this is good to stay up to date, this can cause confusion and inconsistency when referring to records when entered in discovery.

Depending on the type of case and whom you represent, too much information may be just as challenging as too little, particularly when the patient in question is your client.

Evidence of past injuries or conditions that may doubt causation, inaccurate representation of patients presenting complaints, or patients downplaying pain or severity based on fear or pressure could all be found when too much evidence is available.

As attorneys continue to represent clients, continuing to educate themselves on evidence in discovery and how to use it properly and effectively during cases is something that should be sought after. It’s important to keep in mind that these EMRs that are in discovery are accurate and are not violating any regulations as this can delay or harm any progress in cases. The accuracy of records depends on the institutions who produced them so it could be beneficial to follow up with the hospitals or clinics to ensure the information is correct.

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