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EMR and E-Discovery Is Coming: Are You Ready?

April 28, 2017
by David H. Levitt, Hinshaw & Culbertson LLP
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A paradigm shift is on the way. For more than a decade, electronic medical records (EMR) have become a ubiquitous feature of medical practice, from the individual medical practice to the largest healthcare systems. Over that same period, lawyers and their clients who find themselves in federal court have become familiar with electronic discovery; it was in 2006 that the Federal Rules of Civil Procedure were amended to include express reference to “electronically stored information.”

Over that decade, a large body of federal case law and experience has developed, but that development has not been paralleled in state court. State courts—where medical malpractice litigation almost always resides—have only recently begun enacting their own rules on e-discovery, and are also in the early stages of grappling with the challenge of e-discovery.

Unsurprisingly, therefore, the intersection of EMRs and e-discovery has not yet risen to the consciousness of most who deal with medico-legal litigation. Even today, when an attorney requests a medical chart from his or her client, and produces it to the patient’s attorney, it is most likely a PDF copy or paper printed version of the electronic chart. Attorneys for both sides have typically assumed that this is an accurate representation of the medical record and a common starting point.

But this is changing. Plaintiff attorneys are slowly realizing the potential advantages of e-discovery. They have begun asking for “audit trails” from the electronic record. And even here, they are only scratching the surface of potentially important information. Such information can impact much more than the resolution of individual claims, but may affect the way that medical providers are trained, the standard of care, healthcare system policies, and how providers interact with their patients.

It is not possible in an article of this length to go into great detail. But here are some topics that chief medical officers, chief information officers, risk managers, and others concerned with patient care and its intersection with the legal word ought to be considering.

David H. Levitt


Audit trails fall within this category, but are only part of what might be available. For example, a common issue in medical malpractice cases is whether a physician did or did not review a certain notation in the chart before taking or failing to take action. Before EMRs, the issue was largely one of credibility. The doctor might testify as to what he or she reviewed, or a nurse might discuss his or her communications with the doctor. EMRs, however, may change this equation if the EMR system captures each occasion when someone logged into the system, what the person looked at while logged in, and how much time was spent looking at it. Or, the absence of such a record may indicate that the person did not look at a particular chart entry at the relevant time.

Moreover, it can become essential that review of this information be completed before the practitioner makes a statement or gives a deposition—which means that both the practitioner and his or her attorney must have access to that information first. Further, the availability and scope of metadata may vary from software vendor to software vendor. Wisdom suggests that the healthcare entity should understand what is potentially available in its own systems; indeed, most healthcare institutions use software from more multiple vendors for different aspects of their practice, so a review of availability for each system should be considered.

Living Documents

An anecdote: one of my colleagues described an incident where a nurse was divorced and changed her name to her pre-marriage name. Her sign-on ID remained the same. The EMR system, though, changed her name throughout the entire record—including the time when she practiced under her married name. In other words, unlike paper charts, the record itself changed.

Not every change will be so benign. A recurring issue in medical litigation is the authenticity of a given chart entry. In the paper chart days, this could involve retention of handwriting experts and looking for telltale signs of erasure and the like. But with EMRs, change is often a built-in feature. A new diagnosis or finding might or might not supplant an earlier one, depending on the features of the particular EMR program. Participants are best served if they investigate and recognize whether this feature applies to the system at issue, and act accordingly.

Dropdown Menus

Most EMR systems include dropdown menus and fields to fill in, but those generally do not make it into the print-out. Moreover, we have heard reports that the dropdown menus do not always fit the particular circumstance, but that there are limited alternative methods of recording the information. This creates the potential risk that the chart may not be entirely accurate. As attorneys become more aware of this issue, we should expect to see more requests for an electronic version of the chart, including the dropdown menus and available fields.

Communications Outside of the “Chart”


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