What Is the “Medical Record,” and Why Does It Matter in Medical Malpractice Cases?
Medical malpractice cases typically center around review and interpretation of the patient’s “medical record.” However, in the digital era, just what constitutes a patient’s “medical record” is far from clear.
The Electronic Medical Record Versus the Legal Medical Record
Hospitals and medical offices are required by federal law to use some type of electronic medical record (“EMR”). The most widely used EMR vendors nationwide are EPIC and CERNER, but there are many others. Typically, hospital EMRs are customized to their specific requirements and preferences. In other words, two hospitals that both use EPIC may have slightly different systems, based upon individual preferences during the build-out of the EMR.
One feature that all EMRs share is the ability to designate a “legal health record” or “legal medical record.” This means that someone from the hospital’s administration and systems management has defined which elements within the EMR are labeled as the “legal medical record.” Typically, when a patient or their lawyer requests the “medical record,” the medical records clerk at the hospital (or at the outside vendor retained by the hospital to manage its medical records requests) provides only this “legal medical record.” This “legal medical record” may omit large categories of documents or information that is germane to understanding the medical decision making, personnel, and clinical features of the patient’s care. For example, internal communications between hospital staff about the patient, phone notes, notes and transcripts from the hospital’s admission or transfer center, warnings or advisories generated by the EMR system to alert providers of issues, and medication warnings are frequently omitted from the “legal medical record,” as is a whole host of other information that the hospital or its systems manager have excluded.
Despite its name, the “legal medical record” does not include everything potentially relevant to a legal case. In the context of civil litigation surrounding negligent medical care, information outside the confines of the “legal medical record” may be relevant and discoverable within the scope of Rule 26. If so, such data must be produced.
To state the obvious, however, you can’t effectively request a document unless you know how to ask for it. While the hospital and its systems managers know specifically what information is available, patients and their counsel do not. Even while the patient’s lawyer is savvy enough to ask for certain information outside the “legal medical record,” counsel for the hospital and the hospital’s representative may not understand the request and have little incentive to try to understand it and locate the information. Getting access to such data takes not only considerable knowledge concerning what type of information is typically available in an EMR, but diligence and persistence on the part of plaintiff’s counsel.
Digital vs. PDF (or Paper) Record
One thorny issue is the translation between the EMR and the PDF (or paper) version of the record typically produced in a case. Even if the record produced contains the same elements of the medical record from the EMR, the PDF (or paper) version may not have of all of the same information. For example, in a case we are currently litigating, the nursing flow sheets and vital signs from the patient’s EMR has been produced in three different versions, all of which contain different information. One version omits key vital sign data. A second version adds that vital sign data but lacks precise details as to which medical provider recorded the data or the specific times. A third version of the document provides the key data with the initials of the provider who recorded it and the precise time it was recorded.
We mentioned above that the “legal medical record” produced by the hospital typically lacks communications (emails, text, chat, “sticky notes,” phone calls, pages) between or among medical providers regarding the patient. Obviously, these internal communications can be highly relevant to the care provided to a patient. Yet, from our experience, virtually every medical provider takes the position that none of these communications are part of the patient’s “legal medical record.”
Navigating and Viewing the EMR
Another problem with the “legal medical record” is that it distorts the way in which the record was navigated in real time. When a medical provider accesses the EMR, the patient’s record is organized through electronic interfaces that are navigable and intuitive for the user. Typically, there is some type of dashboard screen, where high-level information is available to the provider in a single view, with critical information highlighted or flagged to draw attention to it.
For example, if laboratory studies return a critical value that places the patient in immediate jeopardy, this would likely be accompanied by a warning to draw attention to the value. Likewise, if a medication is ordered that has a dangerous interaction with another medication the patient is taking, the EMR may highlight this with a warning that pops up on the screen to alert the provider of this issue. These presentational aspects of the EMR system are not evident in the PDF version of the record produced.
Drop Down Menus and Dialogue Boxes
Typically, the “legal medical record” does not reflect the options presented to the provider while entering information into the EMR. For example, medical records often contain a “review of systems,” in which the provider purports to go through each major body system (cardiac, respiratory, neurological, etc.) and document detailed information about the patient’s condition. In reality, however, most EMRs have a single dialogue box that the physician may check if he or she wants to document that “all systems are normal.” Checking that single box will then cause the EMR to automatically populate each system review category with everything that the system defines as “normal” findings. Thus, the end result makes it appear that the physician painstakingly reviewed dozens of possible symptoms or signs of each body system, when in reality the physician spent only seconds checking off a single box.
Copy and Paste
Many EMRs are programmed such that when multiple providers are completing charting over time, the prior entry automatically populates a field, unless the next provider changes it. In other words, the default is that the prior record is copied into the current record. Sometimes this accurately conveys that there is no change in the patient’s condition. Other times, it simply reflects a “copy and paste” approach to completing the chart, without any underlying evaluation and assessment. The “copy and paste” approach becomes evident when there’s a significant change in the patient’s condition (documented elsewhere, or described by witness testimony), but the chart continues to repeat the same, unchanged, description from a prior record.
Understanding What Was Not Charted
It is critical to understand whether a description of a patient’s status is free text or a selection from a dropdown menu. Consider, for example, a case in which there is a critical dispute about when a patient became paralyzed. If the patient’s level of strength is described in the EMR as “diminished,” the significance of this description may be less important than the fact that the person charting the entry elected not to choose other options available in the drop-down menu—e.g., “absent,” “flaccid,” or “normal.”
Audit and Access Trails
EMRs are required to capture information about each time a patient’s chart is accessed, who accessed it, from what location, and what actions were taken. 45 C.F.R. § 164.312(b). This information is often referred to as the “access log” or “audit trail.” Documentation of who entered in the EMR and when, as well as what changes were made to the EMR and when, can be of critical importance in understanding what happened in a given case, as well as how much weight to give to comments in a medical record. For example, entry in a medical record may take on a different meaning and importance if it was made after the care was provided rather than in real time.
These access logs and audit trails can be critically important during malpractice cases, where there are disputes about who was involved in the patient’s care, who accessed the patient’s chart and what actions were taken. But access logs and audit trail information are so routine and easily accessible, that at least one state court system has made production of this information part of the mandatory disclosures required at the outset of every malpractice case. This is not yet the rule in Maine, so plaintiffs and their lawyers must fight for this information in each individual case.
Discovery Beyond the Legal Medical Record
There are many avenues to getting data outside the confines of the “legal medical record.” For example, in some cases, we have retained experts on medical record systems to help us draft precise written discovery requests seeking the data we need.
As in so many other areas, a critical tool for unlocking details of the EMR is the Rule 30(b)(6) deposition. We frequently request depositions on topics related to the EMR, accompanied by requests that the original EMR system be produced at the deposition. During a deposition of a hospital, the EMR—as viewed by the actual medical providers—can be viewed on a monitor or screen and captured by videotape for the jury.
Discuss Why Medical Records Matter in Malpractice Cases Today With An Attorney
To effectively represent claimants in malpractice cases (or even conduct a reasonable review and evaluation to determine if there is a case to begin with) the lawyer must understand what information is available in the patient’s medical record and diligently pursue additional information, documents, or an opportunity to inspect the original EMR.
We understand that pursuing legal action alone is overwhleming and intimidating. If you need guidance with a medical malpractice case, contact Gideon Asen LLC today. Our seasoned attorneys have the experience necessary to help you achieve the most favorable outcome possible in your situation.