Electronic health records in litigation

By Edward F. Shay, Esq.


The medical profession is bombarded daily by health care industry thought leaders with recommendations that physicians should adopt health information technology and especially electronic health records (EHRs). Notwithstanding the press of official and professional opinion, adoption of full functionality EHRs remains in the single digit range in the medical profession. Almost all ambulatory EHRs are costly; deploying them can be disruptive to the established rhythm of a practice, and maintaining EHRs often proves more expensive than anticipated. For those who do adopt them, there awaits an additional surprise: namely, EHRs were never meant for litigation despite the fact that producing medical records and associated information in litigation is a frequent occurrence for many practicing physicians.

Most ambulatory EHR vendors design their products to provide new efficiencies such as highly automated prescription drug renewals or integrating scheduling and billing functions with clinical functions. Progress notes have been automated, access to an EHR by any user is automatically recorded for date and time, and clinical decisions can be supported with support tools that alert a physician to a possible adverse drug reaction when prescribing for a patient. In short, the design of an EHR vastly exceeds the content and functional capability of the rather static chart that has for years been produced in the litigation process. Thus, questions every physician should ask when adopting an EHR are at once simple and quite challenging. Those questions are: (1) what do I produce when plaintiff’s counsel asks for the electronic health record of a patient; (2) how do I produce it; and (3) how will that record differ from the paper record I have produced in the past.

In litigation, when a physician produces an EHR, it will respond to all of the informational content of a chart but it will go quite a bit further. EHRs are fundamentally different repositories of clinical and related information from paper records. In terms of information creation, capture and display, EHRs well exceed a traditional chart. The key difference is EHR functionality. EHRs are simply far more robust in terms of what they create, how they create it and what they record. In short, all of the enhanced functionality of an EHR may create information about a patient encounter that will require a different kind of explanation than a typical paper record because it tells a very different story.

Consider for example, the informed consent functionality of some EHRs that will not only create the informed consent document but may also create in parallel a progress note running in the background that memorializes how and when the consent was obtained—including alterations and modifications. Thus, in the EHR, the informed consent is no longer a static document the preserves the outcome of a discussion between a physician and a patient. In an EHR, the electronic informed consent is one that may be accompanied by a step-by-step narrative of its own that must be produced and explained.

Most EHRs include clinical decision support or medication alert tools. These alerts are intended to warn a physician of potential adverse drug interactions while prescribing. Alerts may be either non-interruptive or interruptive. Interruptive alerts may require documented explanation of why a recommendation was not followed. Unfortunately, the alert technology is immature and it tends to overreact. A surprisingly significant percentage of physicians turn off, or routinely override, the alert function because it adds little value to them. Of course, in litigation, the record of alerts that have been turned off, or over-ridden on a case-by-case basis, may be difficult to explain to a judge or jury. Obviously, the static paper chart had no comparable function to override, and makes no simultaneous record of the override of an alert.

Unlike a paper chart, EHRs have features that track and time-stamp access in terms of create/view/update/delete activity by a user. This access information is preserved in the audit log of an EHR. EHR audit logs will identify literally everyone who looks at patient X’s record. When an EHR is produced in litigation, it provides a detailed list of who, what and when that may not have existed with a paper chart. For plaintiffs counsel, the list of persons to depose can almost be printed by the EHR.

EHRs have tools and capabilities that are intended to make them more efficient. One such tool is the so-called copy and paste feature. The copy and paste feature enables a physician to reproduce an earlier note with the familiar ease one enjoys with other word processing programs rather than requiring the physician to re-write an entire new note. In many circumstances, this tool enables a physician to efficiently update a patient’s progress. When the record is produced in litigation, especially where a record is shared with other practitioners, extensive documentation based upon the copy and paste feature may create the impression of mechanized, almost impersonal care. As with other new information technologies, EHRs bring with them social changes and those changes will place new demands upon the users of EHRs in litigation to demonstrate that care was not routinized, robotic and uncaring.

Beyond the important questions of how to cope with new information being produced in an EHR, physicians should consider how information will be produced. Some good news may be that illegible handwriting will no longer plague experts or parties to litigation. That does not mean a physician can simply click “print” and one would print a document in Microsoft Word and a well-organized and comprehensible document will roll off the printer. Unlike a Word document, an EHR may not have been designed to be printed. In fact, for many EHR vendors, the notion that a record might have to be printed seems to have been an afterthought in the design process and what gets printed may be a column of information one inch wide and twelve feet long that is not easy to read or explain to a jury. It may also mean that when printed, all of a single patient’s prescriptions must be printed or all progress notes, or all treatment orders. In short, what gets printed may very well not be what was on the computer screen when the physician treated a patient on a particular office visit on a particular day.

Finally, some information that is related to a patient’s electronic record and relevant to a case may not be able to be printed at all. It may involve metadata, or data about electronic data. EHRs track who obtains access to an electronic record and when and often what the person does. Strictly speaking, this audit trail information is not part of a clinical record, but it may be highly relevant to a lawsuit and courts allow parties to obtain this information in the discovery phase of litigation. Imagine again a Microsoft Word document that can be printed as written. Each Word document has a metadata file found in a dialog box located under properties for the document. The properties dialogue box will display statistics about the document such as when it was created or edited, by whom, and how many versions of it were created. However, you cannot print the properties dialogue box. The same is true for EHRs, even though comparable metadata may be of considerable importance to a case. In these situations, a physician may simply have to arrange for parties to litigation to have access to the computer system that runs the EHR.

Given the robust functionality of EHRs, physicians engaged in litigation need to ask EHR vendors about total content, including metadata. Physicians need to familiarize themselves with the functionality of an EHR that makes it different from a paper chart, and they need to be able to explain why those differences may suggest differences in record content, but not a difference in quality of care. Finally, an EHR vendor should be able to demonstrate the ability to print a comprehensive and coherent legal record.

Although EHRs were not designed with litigation in mind, they will become a part of the litigation process. Getting ready for the process begins before a physician purchases an EHR and continues right through a lawsuit

Edward F. Shay, Esq., is a partner in the Philadelphia office of Post & Schell, P.C.

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