Medical Malpractice: Working with Electronic Medical Records

Written by: Jan Marin, Lawyer and Senior Associate   Technology is pervasive.  It seems as though all facets of our lives today involve technology. My law firm is continually updating our technology to ensure that we are as efficient as possible. We have technology to manage our files, our calendars, email, docketing, internal communication, external communication and more. For the most part, we operate a ‘paperless’ office. The health care system has lagged behind on the technology front, but is starting to catch up. In many cases, medical offices, clinics and hospitals have a long way to go before they are fully “paperless”, but they are certainly employing technology in various ways to improve efficiency and patient experience. Having a working knowledge of ‘healthcare tech’ and electronic medical records (EMRs) is very important when working in the medical malpractice field.  We should have a working knowledge of how EMRs operate, how to utilize them and where their inherent risks lie. I hope to provide some basic knowledge, tips and tricks when working with EMRs.   EMR Risks Consider how the EMR can contribute to medical errors. There may be errors inherent in the technology. For example, some hospitals have more than one system in place and understanding how these programs interact and communicate with one another is important. Hardware and software require technical support and updates to be reliable and secure. This results in system ‘downtime’.  When these downtimes occur there can be issues with respect to program interfacing.  What if a dictated note is not entered into the system because the program was updating when the physician phoned in his or her note?  What if a care provider is reviewing a file and a simultaneous update is unable to upload?  These situations can and do occur.  If technology is not properly updated and maintained other problems can occur. For example, if an institution is utilizing multiple systems and one of them updates, there may be issues with ‘communication’ between systems.  Updates are also useful for fixing system ‘bugs’ in order to increase the functionality of the technology, but staff will require ongoing training, particularly after an update. Another inherent risk is human error.  Humans are responsible for inputting and coding data which is entered into a file. In some cases, there is ‘pre-populated’ data, or information that can be copied and pasted from one history to another, and may no longer be accurate.  For example, maybe a patient received a new diagnosis or is on or off medication, and the new information isn’t added because it was a ‘copy/paste’ of a prior given history.   Did the nurse check off the right boxes in the history? Did a team member click delete instead of save? Did a physician fail to copy other responsible care providers, or were day and month numbers reversed?  While documentation errors have always been a risk, it is important to consider how these errors have evolved when dealing with an EMR. The use of EMRs certainly doesn’t alleviate concerns about missing or incorrect records. An example of human error by hospital staff occurred in a case handled by my office.  The case involved a hospital which had a hybrid system consisting of both handwritten notes and an EMR. There were duplication and inconsistency in the record- keeping. The involved nurses had different practices insofar as where they recorded their notes and which set of notes they consistently reviewed when commencing a shift.  Ultimately this resulted in a failure to properly monitor and assess the feeding pattern of a neonate, leading to disastrous consequences.   Discovery of EMRs & Related Information When requesting records that form part of an EMR, it is important to understand which programs are being utilized by a particular institution. The largest EMR providers in Canada are Meditech, Epic and Cerner.  Each offers programs that function differently. Even within each provider, you may find different programs.  For example, EPIC’s programs have been created for various areas of medicine including: Cupid (cardiology), Stoke (Obstetrics), Bones (Ortho), Radiant (Radiology), Lumens (Endoscopy) and Beacon (Oncology). When requesting copies of EMRs it is important to consider the specificity of the request. While the general request might indicate “all medical records” are being sought, it may also help to ask for records particular to a specific program.  Moreover, it may be advantageous to request access to the program directly in order to understand how it is operated and how it functions. Another case handled by my office dealt with a program known as Obix Perinatal Monitoring System.  The hospital was unable to reproduce a copy of the system so that our client’s records could be opened offsite and reviewed as they appeared to the clinical providers at the relevant time. Ultimately, counsel attended at the hospital on numerous occasions to review and learn about the functionality of the system.  On one occasion the clinical educator was made available for system functionality questions. This allowed us to learn how the system functions in practice and to see all of the things not available in the procedures. In the end, we conducted the examination for discovery of the responsible obstetrician in a hospital boardroom so that the program, alarms, flashing lights and other details could be put to him during the examination. While this may not be practical for every case, it could be very helpful in some cases depending upon their facts. Another request that should be made of hospital counsel during the discovery process is for a copy of the staff training materials for the particular EMR software in use. Another area of interest during the discovery process may be the available audit data.  In many of the EMR programs, it is possible to download the audit data in excel format; thus, be sure to request this format of the data. A request may also be made for a copy of the ‘data dictionary’ for the particular EMR. This document will provide the names of various modules, events, types and descriptions which often only appear as codes or acronyms within the audit data. In some cases, the data will be significant and you may need the help of an IT expert. Ideally, he or she will have experience working with the particular EMR program to assist with breaking down and making sense of all of the data you have received. Again, this will be dependent on the type of case and the relative importance you have placed on the data ‘evidence’. When requesting EMRs, it is important to put on the record and make clear that you are requesting all versions of the records, including pre-edited copies.  This data may not exist in every case, but the hospital representative and counsel should be asked to at least make the request and attempt to obtain prior versions of a record. They will certainly need to involve the hospital IT team in these pursuits.  Best practices for discovery purposes include asking for colour copies or all records, requesting that all records be preserved, and reserving your right to view the records and system in the ‘portal view’ as they appear to clinicians, as in the case described above.   PACS (Picture Archiving and Communication System) Most counsel working on medical malpractice cases are familiar with the PACs system.  It has been in use many years and long before hospitals began converting to EMR systems. It allows x-rays and other imaging to be stored electronically with their corresponding reports, viewable using workstations throughout a medical center. PACS also allows for remote viewing of images from off-site locations. The PACS software interfaces with most EMR systems. The PACS system has available metadata which can provide study dates, acquisition dates and image dates.  The audit trail can provide the date, time, work station and user who accessed the available imaging.  In order to assist counsel with understanding PACS metadata and audit trails, there are systems manuals available online.   Limitations of Information It is important to remember that even the hard information/evidence we receive from these records is not without limitations. For example, in a recent case, I worked on there was a question as to who reviewed available CT results and when. The audit trail information did not make sense. Follow-up discovery determined that at this particular hospital it was common practice for someone to log onto the PACS system and simply leave it open for all team members to use as needed. The intention was to alleviate the need for team members to log on and off in a busy ER.  This information changed the picture entirely. Make sure you ask questions and reserve your rights to ask further questions which arise following the satisfaction of undertakings.   Conclusion EMRs can make our jobs more complex. Indeed, I have only scratched the surface with the examples referenced above.  When these types of issues present themselves in your case, make sure you take the time to learn about the programs you are dealing with, ask questions, be curious and be persistent. EMRs bring a whole new dimension to this already complex area of law, and the unique issues which present themselves cannot be overlooked.