The Electronic Health Record in Litigation – Some Considerations

by | Published on Jun 8, 2015 | EHR/EMR

EHRs in litigation – many practitioners may not have given serious consideration to the fact that EHRs contain important information relevant to malpractice litigation and may be “discoverable” from a legal point of view. Electronic health records can prove confusing and complicate court proceedings. It is important that in today’s EHR driven healthcare scenario physicians and their staff understand the intricacies of electronic health records, how they may be used in litigation, whether for personal injury or malpractice cases. Reviewing electronic medical records for medical litigation may be different from that of paper records.

What are the pitfalls inherent in digital healthcare records that physicians and other clinicians need to be aware of?

  • Referring to medical facts is easier with regard to an electronic health record, so if a physician makes an error because he/she did not refer to the facts thus easily available, the court may pronounce a harsher sentence.
  • Any proof of wrongdoing can be more easily located – such as inappropriate corrections, tampering, data destruction etc via electronic data stamps, unauthorized access and incorrect data entry. Data entry has time stamps that show when the healthcare information regarding a patient was entered into the EHR, not the actual time of the medical event.
  • Most EHRs are not designed to be printed. What is seen in the printout may not be what the physician saw on his computer screen when he provided the treatment/service to the patient during a particular office visit on a particular day. Worse still, it may not be possible to print a patient’s electronic record relevant to a case. In this case, the physician will have to allow litigators access to the computer system running the EHR.
  • Another serious concern with EHRs is that if physicians and their staff take shortcuts or use automated features to complete patient data quickly, a court of law may consider it as slipshod, impersonal patient care. When the copy-paste functionality is excessively used by providers and results in extensive documentation, there is a chance of judging it as impersonal care or a lack of concern for the patients’ well-being.

So what does this signify? When purchasing an electronic health record system, physicians should reflect on how the system’s data capture may hold up as evidence in a court. They must understand how EHRs are different from paper medical records and how the facts in them may be used as evidence in court. The best choice is a system that can print a clear and comprehensive legal medical record so that offering medical records as evidence in court will become an overall smoother process.

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