Lawyers, Thieves, Fraud and Other Unnatural Disasters

I have presented the most risk-averse ways to document in the record in order to reduce your risk of being sued for negligence. This article, however, is aimed at how the electronic record, itself, can place you in legal jeopardy. The legal medical record is, of course, very different from the world of paper, which some of us still remember. In the electronic world you, as a provider, view screenshots in a particular order. The “print medical record” function in an EMR generates a report that bears no resemblance to what a provider was looking at when clinical decisions were made at the time of treatment.1

- Your first opportunity to see the electronic record printout may be at the time of your deposition.

- You may find yourself having to sift through pages that you cannot recognize.

- The longer it takes you to actually locate “vital signs”, the more incompetent you might appear.

- Long pauses and confusion when confronted with these foreign pages serve the purpose of shedding doubt on your judgment and competence, for the jury.

- Opposing attorneys are seeking to frustrate you, which never looks good at deposition or trial.

Due to discrepancies between what you thought you typed on your computer screen and how it prints out, judges and juries are discrediting provider testimony. As an example: The printout indicates: “Patient w/sepsis; gangrene and severe rash =>” skin normal”. An EMR, in one case, reflected repeated interviews with a patient. . .who was comatose. There have been issues of translation that do not favor the defense of care. Although efforts to improve these issues are ongoing, what you are testifying to may not be reflected in the printouts.

When in doubt, free text. Details from an EMR printout may not accurately reflect the decision options displayed on the screen. Irrelevant information ends up being printed, and essential information may not show up at all. Anywhere. Even printed “screenshots” will look foreign. During testimony, you may have nothing remotely familiar to refer to. Choices on your computer screen are often absent on the printout. Evidence of “critical thinking” may, also, be absent.

If you find yourself called to deposition or trial, your best preparation is to be familiar with the EMR paper printout. You must be allowed to view it before you testify. At trial, you may be dealing with a pile of paper you have never seen before. Ensure that you and your attorney are aware of what is and is not included.

What Can Be Discovered in Litigation?

Everything that is legally relevant. Virtually any form of electronic communications: e-mail, text messages, voicemail, blog posts etc. Any electronically created or stored documents, including Google, Word Perfect, Easy Office Writer, Microsoft Word, PowerPoint . . .you name it. All types of spreadsheets, databases, and any customized electronic information is discoverable. The worst news? All social media content, even if you have privacy settings.

How do lawyers get all this stuff? Usually through motions and court orders. They can take your phone, get into all your apps and discover what you used (aids to medical decision making?), how it was used, when it was used – and that will lead to why? Against your best interests, an opposing lawyer may convince a judge that the discovery request is relevant inquiry. It is, however, illegal to randomly raid workplaces, homes, cars, purses etc. According to the Federal Rules of Evidence, everything is subject to discovery IF “reasonably calculated to lead to the discovery of admissible evidence”. Judicial rulings on broad discovery will be made in accordance with this standard.

What is the Discovery Smoking Gun?

METADATA. Metadata is detailed information that explains/identifies other data. It can provide details about the creation, format, origin, and context of data. It can be applied to various types of data, including files, documents, images, and databases. In medical malpractice, it includes audit trails, access logs, and time stamps. For a long time, it has been considered part of the formal and legal medical record. Metadata will record who, when, where, why, and how a person accessed a patient’s medical record. Identity of the user, time of access, terminal, or device used for access, action taken by the user (viewing the record; changing the record). All is recorded in metadata which can be reproduced and used as evidence.

Metadata is captured automatically by the EMR system. The audit trail should correspond, entry by entry, to the patient’s medical record. If an entry in the audit trail shows data was added, changed, or deleted, a corresponding entry should appear in the patient’s chart. Metadata can reveal an intended manipulation of data in order to alter events that actually occurred. Ensure that you have a valid reason to be in the chart. Curiosity may make you a defendant.2

Legal Cases:

A hospital audit trail produced during discovery revealed a “terminal identifier” for an EMR entry, which prompted a nurse to change her testimony when it was disclosed that she had been using a computer terminal in another part of the hospital. It was not at the bedside with the patient, as she had initially testified in her deposition.3

In another legal case, a patient was left quadriplegic after surgery. The lawsuit initially targeted the surgeon’s competence. Still, a further review of the EMR metadata revealed a date stamp that raised suspicions about whether the anesthesiologist was present for the entire duration of the surgery. The availability of this EMR data in pre-trial discovery increased the likelihood that prosecutors would find evidence of wrongdoing among a whole team of providers.4

Late Entries

It is expected that patient care entries be made simultaneously and/or as close in time to the care event as possible. With EMR, late entries are evident due to the embedded timestamps in the software. If there are time gaps between the timed finding and the charted entry, there will be scrutiny regarding the reason for the delay. A valid explanation is needed (especially in acute situations) to chill the excitement. Lawyers, no matter how intelligent, will never fully understand the clinical realities in acute circumstances. They have never stood in that fire. Theory and clinical realities often conflict.

1. 5 Legal Issues Surrounding Electronic Medical Records – Becker Hospital Review/Healthcare News + Analysis. https://www.becker-hospital review.com/legal-issues-surrounding-electronic-medical-records.html

2. Patient Medical Records: Metadata. https://engimaforensics.com/blog/patient-medical-records-metadata-litigation/

3. Ibid. pg. 1

4. Ibid. pg. 1

https://www.midwivesontrial.com

Electronic Medical Records: Legal and Professional Risks to Providers

EMR Documentation Part V: For OB, Neonatal, and Midwifery Providers