Medical practices throughout the country are starting to replace traditional paper record keeping with electronic health record (EHR) systems. These computerized systems contain a significant amount of information such as scheduling and claims, information about clinical events such as the patient’s original complain when they were admitted, the patient’s “history”, progress notes, the course of treatment, and discharge. As long as the individual has appropriate access privileges, they can view and modify a patient’s record. Additionally, a physician who uses an EHR system is able to send electronic messages and can electronically transmit diagnostic test images, results, and reports. All this information in one place is a “treasure trove” of discoverable evidence for a litigator.
Lawyers need to be aware of the information stored in an EHR system. If the lawyer is for the plaintiff, he or she will need to demand all relevant electronic information and then insure that it is all produced. A medical expert for a plaintiff is an important resource when it comes to crafting a document demand seeking particularized information stored electronically. Defense counsel also needs to know what electronic information is maintained and determine if there are any problems with the quality of that information. A recent appellate decision out of the Fourth Department, Karam v. Adirondack Neurosurgical Specialists, P.C., is informative about what issues counsel needs to consider when they review information that is stored electronically in an HER system and how to utilize the information at trial.
The court in the Karam case affirmed a verdict dismissing a medical malpractice lawsuit. This decision referred to testimony that the electronic records kept by the hospital where likely incorrect due to issues with the computer system. Apparently the time stamps on some of the entries made by hospital staff could have been incorrect. The plaintiff tried to request an instruction that the issues with the computer be disregarded by the jury. The court denied this request. The plaintiff did not request a mistrial.
The court decided that the plaintiff did not preserve her contention that she did not receive a fair trial due to the defendants’ presentation of evidence regarding the computer problems because the plaintiff did not seek an adjournment of the trial or a mistrial.
Lawyers need to keep adjusting to problems associated with e-discovery and the admissibility of electronic records as more and more systems are converted to electronic format. There also needs to be cooperation between plaintiff’s attorneys, defense attorneys and health professionals because they are all faced with the issues of expensive electronic information production, evidentiary issues, the benefits of transparency, and accurate reporting of information. Plaintiffs’ lawyers have to ensure that the medical records they are provided are accurate and complete. Likewise, defense lawyers will need to be able to vouch for the accuracy of their client’s EHRs.
Lawyers and their clients need to be well versed in e-discovery and need to cooperate in the production of EHRs and their admission into evidence and not take advantage of any computer problems associated with the EHRs.
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