The Path to Paperless

EMR and Legal Issues — Part 2

"Old" electronic records must be accessible.

By Peter J. Polack, M.D., F.A.C.S.

In last month's column, I discussed legal matters related to electronic medical records (EMR), such as what makes a legal record, ensuring the integrity of the medical record through devices like an audit trail and how to prevent an electronic medical record from being altered. This month, I will touch on other important EMR-related legal issues.

E-Discovery

Discovery is the pre-trial phase in a lawsuit where each party can compel the production of evidence, such as through a subpoena or a deposition. E-Discovery concerns information that is saved in an electronic format. The collection of digital evidence has even spawned the field of cyberforensics.

In the world of paper records, charts that were more than 7 years old and which were purged were considered legally "inaccessible." If you were asked by a plaintiff's attorney to produce the record, you were not legally obligated to do so. When it comes to electronic information, however, inaccessibility may be more difficult to prove — electronic data can almost always be recovered. In fact, most EMR software systems currently do not allow a healthcare provider to "delete" a patient record.

Recent legal cases have established that all data that is "accessible" must be produced — this even includes data backup. While this may appear to be an unfair request for a medical practice, legal experts who deal with these cases believe that EMR will ultimately result in fewer malpractice lawsuits due to improved documentation and fewer medication-related errors.

If the data is contained on obsolete or failed hard drives or storage media and the expense to recover the information is significant — thus considered "an undue burden" — a judge may rule that the expense may possibly be shared by both parties.

No one column can adequately cover all the issues raised by the emergence of E-Discovery. It should be understood by all practitioners that E-Discovery will become increasingly important as EMR becomes the norm. The bottom line for medical practices is that a reliable and secure backup process is a must.

Patient Privacy Issues

Remember when HIPAA first reared its convoluted head? No longer could you even have a check-in sheet for patients at the front desk, lest a patient discover who else is being seen that day. Eventually, rational heads prevailed and some of the more inane regulations were relaxed. Nevertheless, there are privacy issues unique to the electronic practice of medicine regarding the inappropriate disclosure of patient information — computer monitors left on in view of another patient, unauthorized e-mail, an unsecured wireless network, unauthorized distribution of billing reports containing personal data and misplaced scanned documents, to name a few.

If you haven't already done so, consider forming a Legal, Risk and Compliance (LRC) committee in your practice to specifically address the issues mentioned above, as well as any that may arise through the use of EMR. Always be asking yourself: what can go wrong, when, how and by whom? And then perhaps when (not if) you face a legal crisis, you will be prepared. OM

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