Parents are entitled to their child’s electronic medical records (EMR) as long as their parental rights have not been terminated. This right was established by the Health Insurance Portability and Accountability Act (HIPAA) and the Health Information Technology for Economic and Clinical Health Act (HITECH).
The Family Justice Resource Center has encountered countless cases in which hospitals violate HIPAA and HITECH by refusing to release a child’s records once a child abuse pediatrician has alleged abuse. By refusing to release records in a timely manner, hospitals make it impossible for the parents to get an independent second opinion before legal proceedings begin. Even when a court orders a hospital to release medical records, hospitals provide incomplete versions of the medical record that seem to reduce the risk for the hospital. There are countless instances in which lawyers and forensic experts have found that the records provided to the court were altered (such as concealing the opinions of treating physicians who do not agree with the diagnosis of abuse or failing to give reference ranges for critical lab values.) Altering records is a violation of HIPAA and HITECH.
The only way to ensure that parents and their legal team have the full EMR is to petition the court for the entire medical record and audit logs. Audit logs (also known as audit trails) consist of patient data that is not shown on all screens of the EMR and is not part of the printed medical record. The audit logs provide a chronological record of who accessed a child’s medical records, when and where they accessed it, and whether or not they made changes, such as entering new data, modifying or removing data, or obtaining a printout. Audit logs also provide access to communication between doctors that were marked as sensitive or private. While audit logs do show when changes are made, in some EMR systems they don’t show exactly what changes are made. To see the detailed changes to EMR content over time, parents and legal teams also need to obtain the revision history to show how the contents of the record were altered.
In a new Circuit Court ruling (Cook County IL), Prieto v. Rush University Medical Center, Judge James N. O’Hara ruled that parents have a right to obtain their child’s full EMR and that a hospital’s failure to release a full EMR, complete with the audit log and revision history, is a violation of the Supreme Court’s discovery rules, as well as federal information blocking regulations.
Judge O’Hara is not the first to face these types of decisions and surely won’t be the last. Numerous hospitals are currently under investigation by the U.S. Health and Human Services Office of Inspector General (OIG) for Information blocking.
Hospitals are pushing back against the Prieto ruling, which is a possible indication that they know the release of audit logs and revision histories may pull back the curtain on the mishandling of records and could lead to them being out of compliance with Federal healthcare laws and regulations. Failure to comply with these standards can lead to the loss of government contracts, erosion of trust, and a damaged public reputation, as well as vulnerability to lawsuits. The OIG has also proposed a rule outlining the financial civil penalties for information blocking.
Garrett Discovery—a digital forensic firm that played a lead role in the Prieto case—assists plaintiffs in obtaining full and accurate records in medical negligence cases. Their VP of Healthcare Forensics, Dr. Steven Ariss, states “The amount of changes to medical records well beyond the date of care is staggering. When changes are made it is sometimes performed by those who are not in the business of giving care”.
Ultimately, audit trials should be used in court proceedings that involve medically-complex abuse allegations. If judges are able to ensure that all parties in a case have based their testimony on full and complete medical records, they will be able to do a better job of protecting children, both from abuse as well as the trauma of a wrongful allegation of abuse.