Electronic Medical Records (EMR) / Electronic Health Records (EHR) have largely replaced paper medical records since the enactment of the Health Information Technology (HITECH) Act for Economic and Clinical Health in 2009 forever changing the medical field as well as the litigation process.
For decades the courts have accepted medical records produced as the source of truth. That trust has been broken as the ability to cover up a broad range of mistakes and information gaps is far too easy. Today’s healthcare providers often take the position that an Electronic Medical Record no matter what it consists of can be produced in the legal context as a “Legal Electronic Medical Record”. This allows facilities to determine internally which information constitutes the official record for evidentiary purposes. This definition often does not contain important information about changes to medical records, while also allowing the hospital to withhold sections of the record. Often times, changes cannot be detected by looking at a hard copy of an electronic recording, and many EMR vendors have prevented the ability to print or export alterations to a medical record. Printed records may be certified as complete even without this information.
Don’t believe this notion. Below is an excerpt from Epic’s guide from a public record on designing a legal medical record:
“The elements that constitute an organization’s LMR vary depending on how the organization defines it. Medical records leadership, clinical leadership, legal counsel, risk and compliance managers, and others may provide input on the LMR.”
The entire concept of Legal Medical Records was brought up by EMR vendors during the Cures Act Information Blocking subcommittee hearings. The Department of Health and Human Services Office of National Coordinator shot down the idea that EMR vendors could simply rewrite legislation and what a medical record is.
A medical record is a designated record set and if you want to know more about why data that has been classified as audit data is part of the medical record you will have to read the legislative review posted on our site.
Legal Medical Record is a term that was created by the medical industry in an attempt to provide patients and courts with what they deemed to be the record that gives them the least amount of risk. Do not fall for this and challenge anyone that has used this term. We challenged many hospitals and in the words of one hospital in front of a 20 year trial judge “it is whatever we decide goes in it”.
Most EMR/EHR systems have robust auditing and although attorneys are now asking for the audit trails, they are often given access logs that contain no transaction level auditing. There are many so called experts that are selling you on the idea that these access logs will answer all your questions and they are WRONG.
We reviewed our competitors reports in the Chicago area and found that all of them used access logs to advise their client and even though they often associate their work with what cause the defense to come to the table and settle they are often wrong.
Don’t believe this notion. Did you know Epic (going to pick on them for a minute) has 3,600 auditable fields? Does your access log which is often mislabeled as an audit log contain 3,600 columns? My guess is your dealing with about 30 columns!
Not only will the audit logs tell you who accessed the record and when, but can tell you where the file was accessed (computer terminals in emergency rooms, nurse stations, risk management, etc.).
By having a forensic expert examine the Medical Record, and performing an inspection of the record within the EMR/EHR system you can see mistakes, information gaps, typos, strike outs, redlines, and workflow analysis that has the potential to answer whet her or not the practitioner relied on old or incorrect records, interoperability data, altered entries, and hundreds of other points. Inspections of this type can be done remotely, or in person and at minimal burden to the facility.
Courts are becoming wiser to the flaws in EMR’s and the games played within electronic medical records discovery. Discovering discrepancies between what is in the EMR vs the Legal Medical Record can often bring a case to resolution quickly for fear of corporate malfeasance.
If you are seeking a team which includes Experts, a Doctor, Nurses and technical staff that can help you navigate the complex discovery issues of Electronic Medical Records our team is here to help. Members of our team worked for and with the Department of Health and Human Services and Office of National Coordinator implementing the Meaningful Use and Interoperability programs and our technical staff have experience in mining out critical data, audit trails and logs from more than 55 medical record systems.