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I’ve litigated personal injury cases for nearly 25 years and I’ve read literally millions of pages of medical records. The advent of electronic medical records (EMRs, also known as EHRs for Electronic Health Records) was touted as the answer to many litigators complaints: Handwritten records were often incomplete, confusing and illegible. And while a printout is (usually) legible, EMRs bring with them a host of other problems and considerations. If you deal with medical records in your practice, there are some things you should know.
Records from a hospital are likely going to follow a fairly predictable structure. Rather than appear chronologically, entries will be grouped according to the type of record, or the department in which it is generated. Usually, hospital charts will group entries by:
- History & Physical
- Physician/Provider Orders
- Physician Progress Notes
- Surgical and Anesthesia
- Nursing Nots
- Intakes & Outputs
- Medication Orders
- Medication Administration
- Lab Results
- Discharge Summary and Orders
The order will vary, but you will usually find these types of records grouped together. Its logical and, once you are accustomed to reviewing records in this format, the structure makes sense. However, it makes constructing a chronology of events and findings difficult. Chronologies, some down to the minute, are extremely common in medical negligence litigation. In order to construct a chronology from the typical extensive hospitalization, it will take hours of working through the records page by page. Its tedious, but if the timing is important to your case, you are rewarded with an intimate understanding of the case.
What You See Isn’t Likely What the Nurse Saw
I have yet to depose a nurse with a printed record without hearing some version of “this isn’t the way we see it.” On the computer, EMRs are versatile. An experienced nurse, physician or technician can go through an electronic chart and find entries, vitals and labs with ease. That is because the typical system is set up to work as an intricate matrix of interconnected entries that can be accessed by clicking on values or tabs to jump to the needed information. Unfortunately, a print-out or .pdf file of a chart loses that ability to jump from one related entry to another. While a nurse can choose to look at a chart in a shift or date view, you, the attorney, won’t have that option. And it will cause confusion. Be aware of it and be prepared to direct the provider to particular entries.
Unreliability of Records
EMRs were supposed to solve the problem of unreliable records. After all, you can’t simply write in an entry or tear out a page and replace it with another, like you could with a hand-written chart, right? Actually, wrong. Very, very wrong. In fact, EMRs are more susceptible to illicit manipulation. With a hand-written chart, you at least had the option of looking at the original to see if the pages looked different or if a different ink was used. If the reliability of an entry is truly critical, then a document examiner could be called in.
With EMRs manipulation will likely be undetectable to you based on the printed record. Should late entries or alterations be clearly logged as such? Absolutely! Are they? Not likely. In fact, I have done extensive work involving manipulated EMRs and many, many systems are clearly designed to make such additions, deletions and alterations invisible. What is interesting, is these nursing or hospital additions, deletions and alterations are not only invisible on the printed record provided to a patient or his counsel, but they are likely to be undetectable by a doctor reviewing the chart! Obviously, alterations, deletions and late entries are problematic, not only in litigation but also for treaters.
How do You Overcome this Inherent Unreliability?
If the who, when, and where of entries in EMRs are critical to your client, HIPAA and Medicare regulations require the EMR systems to have the ability to produce what is known as an “audit trail.” The audit trail should be able to show when each entry was made, by whom and if additions, deletions are alterations occurred. It should also be able to tell you who accessed the patient’s chart, when and what they looked at. Why is that necessary? Well, if the issue is whether or not a doctor actually looked at a test result or not, the audit trail should tell you that. I’ve also seen audit trails that showed that a hospital’s risk manager and legal department had been in the patients chart during or shortly after a disputed event! Powerful information.
The interesting thing is, without the underlying audit trail, a hospital or doctor involved in litigation may not be able to admit medical records into evidence. In order to be admissible, most state law requires that a provider be able to show that the records were made “at or near the time of the entry.” Without the audit trail, that may not be possible. Just a thought to consider if you have an EMR to introduce into evidence.
This is just a taste of what you need to know about EMRs. If Lawyerist readers find this topic helpful, I can try to delve into it more deeply in future posts.Image: http://www.flickr.com/photos/67272961@N03