Medical records in doctor’s offices and hospitals are transitioning or have already transitioned to electronic medical records (EMR). In fact, the HITECH Act (American Recovery and Reinvestment Act of 2009) was enacted to include incentives and penalties for switching to electronic digital records rather than paper records.
Lawyers who regularly deal with medical records, whether it be for personal injury cases, workers’ compensation cases, medical negligence cases, Social Security disability cases or other forensic matters, find that there is a vast difference between the written record (sometimes very hard to read) and the electronic record (sometimes difficult to understand).
Behind the use of any digital technology, including digital medical records, is the use of metadata. Metadata is particularly important as a means of organizing information and finding it when searching.
For medical records, an electronic file may contain other information that is not part of the medical chart itself. In other words, metadata may contain valuable information about the electronic medical records not seen in the records, such as who logged in, what time and on what date to a patient’s medical chart.
For example, in discovery in medical malpractice cases, I always ask for the audit trails, which is the metadata log of persons who used a computer to look into a patient’s records. It might be important in audit trails to learn one way or another if someone tampered with records. It can reveal other important information about a patient’s care.
Of course, medical records are sensitive materials and protected health information under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Under HIPAA, there are a set of rules that safeguard patient information, whether the records are stored on computers or paper records. For purposes of litigation when medical records are relevant, protected health information (PHI) is designated as electronically stored information (ESI).
ESI can be stored on flash drives, CD/DVD disks, media or on hard drives and SIM cards. Some ESI can be stored on devices that can be deleted or destroyed. That would include hard drives and SIM cards. In addition, data could be stored on offline backup/archival (CDs, DVDs) and “in the cloud” where the material is stored on an offsite server.
Patient protected health information may be transmitted from device to device, including the use of smart phones and personal digital assistants (PDAs).
Increasingly, doctors are carrying or have the ability to log in to patient records by way of smart phones and PDAs. Technology has swept away some of the old methods of keeping medical records, particularly patient records now stored on digital devices; however, the need for confidentiality remains.
The metadata that is generated by those who carry around, log into or otherwise use digital medical records is not seen in the patient’s chart. However, the audit trail can be obtained in discovery. An audit trail is a record of who, when, where, how and why a person accessed a patient’s medical record. The audit trail would even identify what terminal or device was used to access the records. Some audit trails will show why the medical provider used a computer program or the reason the patient’s medical records were accessed to begin with.
Metadata such as an audit trail is automatically recorded by the EMR system. The audit trail is just another way to see whether the patient’s records were altered, changed or modified in some way. In fact, if the audit trail was modified, altered or changed, it would be revealing. The audit trail would also show whether a video record of a surgical procedure, for example, was deleted in part to hide some difficult part of the operation or some other unfortunate event.
Digital imaging and communications in medicine (DICOM) is a standard that allows for the integration of scanners, servers, work stations, printers and network hardware from different manufacturers to access hospital records of a patient. DICOM was first used in radiology. Because of the different makers of CT scanners and MRI imaging scanners, it was difficult for radiologists to view images on different devices. DICOM data also embeds an identification of the patient within the file so that it can’t be separated or mistaken.
Under Illinois Supreme Court Rule 201, the general discovery provisions, electronic data is discoverable. That would include all retrievable information in computer storage. Illinois Supreme Court Rule 214 also includes discovery of “Documents, Objects, and Tangible Things,” which includes production of all retrievable information in computer storage in printed form.
Medical records are admissible as an exception to the hearsay rule. The new Illinois Rules of Evidence would include computer-generated data as medical records falling within the hearsay exception.
Audit trails and metadata should be admissible — and not as hearsay. Audit trails do not include any human input. There is Illinois law on allowing computer data into evidence. For example, in the case of Bachman v. General Motors, 332 Ill.App.3d 760 (2002), the court allowed the admission of data retrieved from the crashed vehicle’s sensor that was important in that personal injury case.
The fact that hospital and physician records have moved to electronic medical records from paper opens up great possibilities of additional information that was previously unavailable or unattainable. With the wave of changes also comes new law, which lawyers should become acquainted with in retrieving electronic medical records in litigation matters. These records may often times instrumental pieces of evidence in cases.
Kreisman Law Offices has been handling medical negligence cases, birth injury cases and nursing home abuse cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Andersonville (Chicago), Mundelein, Buffalo Grove, Hawthorne Woods, Palatine, Des Plaines, Wood Dale, Bloomingdale, Streamwood, Bensenville, Franklin Park, Lincolnshire, Lincolnwood and Libertyville, Ill.
Related blog posts:
Medical Malpractice Lawsuits Do Not Have Harmful Effects on Patient Safety
Making Sense of Electronic Medical Records with the Audit Trail
Evolution of Hospital and Physician Relationships Accelerating with the Affordable Care Act of 2010