Medical evidence is of the highest priority in any personal injury lawsuit. The nature and extent of the injury can be understood only by data mining from the relevant medical records, which is best done professionally by a medical review company. Now that the electronic health record has become mandatory, many changes have occurred in the laws and regulations associated with electronic medical record keeping as well as in what information will be counted as evidence in litigation and how it will become evidence. Among the important areas that are witnessing changes and which attorneys need to be aware of are HIPAA compliance and electronic medical records; what is discoverable; PHI as electronically stored information; the discoverability of EHR and Metadata and whether they can be admitted as evidence. Attorneys must also be aware about the need for data encryption.
What Is Metadata?
With electronic health record systems, comes “metadata.” Metadata has great significance as the basis of information management systems. If information is to be utilized effectively, metadata is vital. Whether to check data integrity, originality or reliability, manage the lifecycle of data and records, and for other data uses, you need metadata. How is metadata relevant in personal injury and medical malpractice litigation? Attorneys know that e-discovery of the electronic medical record and review of metadata could provide the important information they are looking for. Metadata is “data about data.” The electronic health record or medical record generates a time stamp automatically (audit trail) which accurately documents who accessed a particular document, when and where it was accessed, and how long someone was working on the record. Therefore, metadata can give clear indication regarding any manipulation of the medical record and who is responsible for the same. Serious alterations in the medical chart can be identified during a medical records review.
Typically, the audit trail that is captured automatically by the electronic medical record must agree in every respect to the patient’s medical chart. If any entry in the audit trail shows that information was modified, added, or deleted, a corresponding entry should appear in the patient’s medical chart and vice versa. Metadata has become increasingly valuable in medical malpractice cases because of the possibility of identifying any alterations made to the medical documentation after the injury.
There is a possibility that a physician accused of medical malpractice may review the medical record of the injured patient and decide to clarify some important points. But this could be risky, especially in the context of EMR metadata. Metadata can help understand the timing and the type and nature of care provided to the plaintiff, and thereby make available the proof or legal evidence needed to establish medical negligence.
Types of Metadata
Let us now look at the different types of metadata in an electronic medical record. According to AHIMA, the following are the metadata categories:
- Application metadata: This comprises the data generated by the application that is specific to the electronically stored information or ESI that is being addressed, embedded in the file, and moved with the file when copied. Copying could change application metadata.
- File system metadata: It is the metadata the system generates to track the demographics such as name, size, location, usage and so on of the electronically stored information that are not embedded within the ESI but are stored externally.
- Embedded metadata: This is hidden data, which is a very important part of the ESI. These include track changes, comments, notes and so on. Embedded metadata may not be extracted during e-discovery-related processing and conversion. It may be available only in the native, original file.
- Document metadata: This signifies the properties about the file stored in the file, and not stored in the document content. This data can be accessed via the “Properties” view in a document, but may not be immediately viewable in the software application used to create or edit the document.
Metadata Increasing in Significance and Admissibility in Court
Attorneys say that with an increasing number of courts acknowledging the value of metadata as legal evidence, courts are more likely to grant requests for metadata discovery (“E-Discovery: Metadata Analysis in Medical Malpractice Litigation” in LAW.COM). So, that brings us to the process of placing a request for the metadata from the defense. The request for metadata can be placed with the plaintiff’s initial request for medical documents and other relevant things. In medical malpractice cases, metadata can help determine the quality of care provided. There are regulations in place that hospitals and other healthcare providers need to follow, and they must make metadata available during pre-trial discovery if required. To avoid objections from the defendants, plaintiff attorneys have to make sure that the plaintiff’s request is judiciously calculated to lead to the discovery of admissible legal evidence, and is not “overbroad or unduly burdensome under the law.” The request can be made for all metadata pertaining to EHR access, data creation, data modification or any other activity related to the plaintiff’s medical record.
The metadata may be produced in various forms and may be based on a number of factors such as the specific EHR software that maintains the data. It is best processed by an IT expert so that any manipulations or alterations in the medical record can be identified and reviewed. When the metadata involved is large volume, professionals with expertise in it can speed up the process, retaining only the relevant documents and discarding those with no relevant information.
Medical records are perhaps the most valuable evidence in a medical malpractice or personal injury case, which increases the significance of medical review services. Attorneys will be using metadata more during the discovery stage. It follows therefore, that a precise understanding of the various types of metadata and how it could vary with different electronic medical record systems, is necessary.
