More About the Legal Issues with Electronic Records

In a recent column I outlined some issues concerning electronic medical records (EMR). These included what constitutes a legal record, ways to maintain the record's integrity using an audit trail, and some methods of preventing alterations to records. Now we'll go over some important terms that you should become familiar with:

Undue Burden - Some recent legal cases have established that accessible data must be able to be produced. This includes data which is backed up. Although it may seem an undue burden placed upon a medical practice, experts dealing with these types of issues assert that the use of electronic medical records will decrease the number of malpractice suits. They believe this will be a result of improved documentation and lower rates of medication-related errors. Even so, if information is stored on a hard drive which fails, and the cost to retrieve the data is significant, this could constitute an undue burden - a judge may rule that expenses be shared between both parties.

Privacy - You may recall when HIPAA first appeared on the scene. Since then, practitioners can't even keep a patient check-in form at the front desk, as this poses the risk of a patient discovering the names of others who had been in for an appointment that day.

The penalty for this oversight could result in jail time. Although some of the regulations have been relaxed, there are still plenty of privacy issues surrounding the use of electronic medical records at your practice. Most are related to inappropriate disclosure of a patient's medical information. An unauthorized e-mail, unsecured wireless network, and even a computer monitor left on in view for others to see can all present risks.

E-Discovery - The pre-trial stage of a lawsuit is called discovery. At this time both parties may compel the production of evidence by methods of deposition or subpoena. E-Discovery refers to information which is stored in digital format. E-Discovery has become an important area in legal matters, and should become increasingly important as EMR becomes more widely used. It is important for medical practices to maintain secure and reliable back-ups.

Accessibility - In the world of paper records, charts which are over seven years old that have been purged are considered inaccessible; if a prosecuting attorney requests that the record be produced, it may be considered impossible to do so. When it comes to electronic information, inaccessibility is more difficult to prove. This is because most of the EMR systems in use today don't let a medical provider delete patient records, and electronic data can be recovered in most cases.

Consider forming a Legal, Risk and Compliance (LRC) committee for your medical practice. This team should address the legal issues which are described above, in addition to others that may arise. Keep on the look-out for mishaps which could occur. When faced with a legal issue, proper preparation and understanding can minimize your risks.