Obtaining Electronic Medical Records (EMR) in Personal Injury Cases

by | Apr 21, 2022

Obtaining and Using Electronic Medical Records in Personal Injury Cases

 

a. Case Law Update

Federal legislation in 2008 (Medicare Improvements for Patients and Providers Act of 2008 “MIPPA”, codified at 42 U.S.C. § 1395w-3 and 2009 (American Recovery and Reinvestment Act of 2009,“ ARRA”, codified at 42 U.S.C. § 1396b(t) (2018) (“Payments to encourage adoption and use of certified EHR technology”) put into place  special payments to physicians to induce the adoption of electronic medical records (EMRs), also referred to as electronic health records (EHRs) and personal health records (PHRs). The most popular EMR  systems include Epic, Allscripts, eClinicalWorks, NextGen, Cerner, and GE Healthcare, although there are many more manufacturers and systems available.  The widespread use of EMR systems by health care facilities (i.e., hospitals, clinics, long-term care facilities, etc.) necessitates tailoring interrogatory and requests for production discovery requests to ensure obtaining the complete EMR, preferably in native format.

For example, here is a request for production seeking the EMR, and the  response from the defendant and a reply summarizing discoverability:

Request for Production No. 1.  Ms. [Doe’s] EMR in native format.

RESPONSE:
A complete set of Ms. [Doe’s] medical records has already been produced.

REPLY: This is non-responsive. We are entitled to discover Ms. [Doe’s] electronic medical record in native format as how [Def.] handled its medical practice including its patient portal and notification, alert and action plan systems. See Baker v. Geisinger Community Medical Center, 2017 WL 1293251 (Pa. C.P. 2017) (granting plaintiff’s motion to compel discovery of audit trail); Rauchfuss v. Schultz, M.D., 2015 WL 6125374 (Va. Cir. Ct. 2015) (granting on-site viewing of electronic medical record pertaining to decedent for underlying data that plaintiff’s counsel deems relevant, with the right to print that information to be reviewed later, as well as requiring defendant to provide data dictionary, edits, warnings popups and dropdowns); Rauchfuss v. Schultz, M.D., 2015 WL 6125377 (Va. Cir. Ct. 2015) (granting access to view data dictionary and providing protective order to protect proprietary information); Borum v. Smith, 2017 WL 3014487 (W.D. Ky. 2017) (holding that defendant’s contract with electronic records provider did not preclude discovery by plaintiff in medical malpractice case; nor were there any statutory barriers to access to EMR system. The plaintiff was allowed to perform an in person inspection of her medical record on the system itself, and to extent it is in fact impossible to produce an exact electronic copy, court required defendants to provide a printout of the entire audit trail).

See also: Brooks, R.M., A civil litigator’s guide to discovery obligations in the context of electronic medical records. Health Care Law Mon, 2009. 2009(2);

Dimick, C., E-discovery. Preparing for the coming rise in electronic discovery requests. J ahima, 2007. 78(5).

Horn, W.S., Easing e-discovery. The electronic discovery reference model and the information management reference model. J ahima, 2010. 81(1);

McLean, T.R., et al., Electronic medical record metadata: uses and liability. J Am Coll Surg, 2008. 206(3)

b. Audit Trails

With the EMR  one can electronically track the activities of all users within each specified medical record. Tracking occurs through metadata, access logs and audit trails. Metadata is the computer-generated and computer-stored “data about data. Access logs can create a report of all users who have accessed a specific medical record within the EHR. Most facilities and practices analyze access logs regularly for HIPAA compliance and potential hacking threats. Audit trails, also called audit logs, are a kind of metadata that provide documentation of sequential activity within a software application. An audit trail is a chronological record that provides a permanent record of all user activity, including who accessed the electronic medical record and from where; log on and log off times; what was viewed and for how long, as well as any changes, additions, or deletions; to enter new data or modify, or delete existing data; printing; and whether alerts or warnings were overridden, etc.

For example, a plaintiff’s attorney can use the information in an audit trail to see who had been in the medical record after the event and what they were looking at; to target who or what the attorney might want to also give special attention. In a recent case we obtained the audit trail to show each time the physician and nurse practitioner accessed the patient’s record and patient portal to show that missed treatments and oversights.

c. Emails, Texts & “Patient Portal Records”

 Medical records may not be perceived by a health care provider to include e-mails, texts or patient portals. In many cases, however, e-mails, texts or patient portal entries and responses may be particularly relevant. Accordingly, do not overlook these sources for discovery. Here is an example request for production:

Request: Please produce each and every document or thing in the possession of or reasonably available to the Defendant relating in any manner to the incident which is the subject matter of the Complaint or its investigation, including, but not limited to, all medical records, ESI, the EMR, texts, emails, phone calls, phone records, letters, drafts, messages, instant messages, patient portal messages and replies, reports, investigations, CCTV footage and/or video.

Note: As of April 2021, “patient portal” entries must be provided to the patient. See .”  See https://www.healthit.gov/curesrule/.

For more information on the effective use of medical records in personal injury cases see:

How to properly obtain medical records

Reviewing and Organizing Medical Records

Medical Records and Expert Disclosures

Medical Records in Depositions and at Trial

 

 

Lorman Distinguished Faculty Member

Over $500 Million
Recovered Since 1993

We've Helped Thousands of People Just Like You

We are known for getting life-changing results and fighting to make our communities safer.

Why Choose Us As Your  Attorneys?

With us on your side, you can focus on what’s most important – your recovery.

Decades Of Experience

Decades Of Experience

Our Nashville attorneys have over 75 years of combined practice handling cases involving personal injury, medical malpractice, civil rights, medical device lawsuits, wrongful death, and much more.

Excellent Reputation

Excellent Reputation

DRS Law is a well-respected law firm in Nashville and throughout the U.S. Founder, David Randolph Smith, has been selected as a Mid-South Super Lawyer, named one of the Top 100 attorneys in Tennessee in all fields of practice, and is included in the Best Lawyers in America guidebook.

Small Case Volume

Small Case Volume

Unlike many Nashville firms or lawyers that handle a large volume of cases, we concentrate our expertise on a select few cases. With this, our attorneys ensure that every step is taken to obtain the most favorable outcomes for our clients.

We Prepare For Trial

We Prepare For Trial

Every case is meticulously prepared for trial by our trial team and support staff in order to maximize the recovery for our client, whether by settlement or trial verdict. Our proven track record of success has resulted in multi-million-dollar settlements and judgments in a wide variety of individual and group cases.

What to Expect

Our Legal Services Are Completely Personalized To You And Your Unique Needs

01  Free Consultation

Our top-rated Tennessee personal injury lawyers provide free, no-pressure case evaluations. We will help you determine if you have a case and will answer all your questions in plain English. We never charge any fees until we win your case.

02  Personalized Service

If we take your case, it’s because we believe we can help you. We will get to work outlining a strategic plan of action. We want you to feel taken care of during this difficult time — whatever questions you have, we’re here with answers. Frequent check-ins ensure you are comfortable with the progress of your case.

03  You Get Paid

We are passionate about the success of your case and will give it the close attention and focus it deserves. We find solutions that other lawyers miss, discovering key facts that help you win. We call upon our gifts in storytelling to argue your case with passion and conviction so you get the compensation and justice you deserve.

What Our Clients Say

Get Started Today

Request Your Free Consultation

    The Nashville personal injury and medical malpractice law firm of David Randolph Smith & Associates serves clients throughout Tennessee in communities such as Memphis, Knoxville, Chattanooga, Clarksville, Murfreesboro, Jackson, Johnson City, Franklin, Hendersonville, Bartlett, Cleveland, Columbia, Cookeville, Gallatin, Lebanon, Brentwood, Springfield, Dickson, Davidson County, Shelby County, Knox County, Hamilton County, Rutherford County, Williamson County, Robertson County, Cheatham County, Maury County and Montgomery County. We also serve clients in Alabama, Kentucky, Indiana, Mississippi and Illinois. AL, KY, IN, MS, IL.

    If you are seeking a:
    Davidson County Medical Malpractice Lawyer
    Tennessee Personal Injury Attorney
    Tennessee Medical Malpractice Attorney
    Tennessee Wrongful Death Attorney
    Tennessee Product Liability Attorney
    Tennessee Trucking Accident Attorney
    Tennessee Auto Accident Attorney
    Tennessee Civil Rights Attorney
    Tennessee Birth Injury Attorney or
    Tennessee Fire Attorney

    We would welcome the opportunity to discuss your case confidentially and free of charge.