Utilizing EHR/EMR in Medical Malpractice Cases: A Step-by-Step Guide

Electronic health record systems are appreciated for the improved medical documentation and physician efficiency they ensure. In addition, EHRs/EMRs also facilitate processes such as medical record retrieval and review. Medical malpractice cases require comprehensive medical record review for attorneys to understand the medical aspects of a case. Being digital, EHRs make the review process easier and provides attorneys with all the medical details such as diagnoses, treatment history and so on. It is much easier to instantly and securely share electronic medical records with other authorized healthcare providers and attorneys who need the records.

Effective Use of EHR by Plaintiff and Defense Attorneys

A plaintiff attorney must have a clear idea about what medical records are available, what to request and when to request them, and how to request the records.

• To know what medical treatments were provided to the client and the actual outcomes, the attorney must request all the electronic data related to the care provided.
• It is important to be as specific as possible.
• The medical record request must be based on accurate information obtained from statutes such as HIPAA and HITECH.
• Each healthcare facility may have certain unique policies and procedures. Familiarity with these will enable attorneys and their legal teams to understand what records the facility has and who maintains the records. For instance, the medical information the attorney wants may not be within the EHR, but within a software module extension program. If the attorney does not request for the medical evidence in its native format or a useable digital format, they may receive only a limited printed version. Also, it is important to understand that the printout may contain only skeletal information and any audit data may be missing. So, the attorney must be knowledgeable regarding the diverse file types wherein information is stored.

Now, we come to the defense attorney.

• The main concern here is how to respond to a medical record request from the plaintiff’s legal representative.
• If the response is not appropriate, or if they fail to respond, it could pose legal risk for the defendant physician. So, the defense side has to ensure that the entire medical chart has been released as requested by the plaintiff side.
• The defendant is legally obliged to reveal all requested information related to the specific case and ensure that no requested details are withheld from the plaintiff’s attorney. In short, the defendant must respond appropriately to the request made.
• The defense attorney needs to ensure that the client provides accurate and complete information about the technical aspects of their EHR system. This is especially important when a request is made for the audit trail and audit logs, which describe who did what, when, and where. Federal and state law mandates such audit controls. The audit trail is generated by automated monitoring software that records the entries and manipulations made in the electronic health record as and when they occur. Thus, any viewing, editing, printing, deleting, downloading and exporting actions are recorded in a timely manner.

Medical malpractice litigation relies heavily on the medical record, which is an objective record of the plaintiff’s condition and the care provided. The advent of the electronic health record and its use have transformed medical malpractice record review and litigation. It has become easier to identify tampering and other misuse of the medical record. Importantly, defendant physicians and their attorneys, or the plaintiff’s attorney cannot any longer use ignorance or lack of information/knowledge as an excuse.

Medical Record Retrieval Services Could Prove Useful

Plaintiff as well as defense attorneys will find the service of a medical record retrieval company very helpful in securing the complete set of medical records. Professional medical record reviewers also understand whether the patient’s status is completely recorded or whether there are gaps in the data available. They can also clearly comprehend the audit and access trails, and all documentation regarding who made entries in the electronic health record, what changes were made to the record and when. This will enable the attorney to understand what happened in a given case. Access logs and audit trails are of key significance in medical malpractice cases that involve disputes about who was involved in the patient’s care, who accessed the medical chart, and what actions were performed.

Medical record review for medical malpractice cases provided by an experienced medical claims review company can provide attorneys with the evidence they need to effectively represent their clients. Keeping in mind all key considerations related to the electronic health record and with the right medical record review support, medical malpractice attorneys can make proper use of the EHR.