EHRs Not Reliable for Legal Cases, Experts Say

Ken Terry

October 03, 2014

Electronic health record (EHR) documentation has a wide range of reliability and authenticity and should be verified before being admitted into evidence in legal proceedings, argue health information technology and compliance experts in an article published in the Summer 2014 issue of the Ave Maria Law Review. However, it is unclear whether evidence taken from EHRs has ever been disqualified in a malpractice case.

The central contention of the authors, Barbara Drury, Reed Gelzer, MD, MPH, and Patricia Trites, MPA, is that EHRs are designed to maximize payments to providers and therefore do not necessarily reflect the care that was actually provided to patients. They also note that the "litigious atmosphere in healthcare" offers incentives to use EHRs that can "amend representations of events, according to considerations other than accuracy and reliability as legally sound records."

The paper cites a 2012 letter from Attorney General Eric Holder and then–Secretary of Health and Human Services Kathleen Sebelius warning hospitals not to manipulate electronic records for the purposes of getting improper payments from Medicare. This letter followed press reports about the widespread practice of cutting and pasting past EHR notes into current ones.

Partly as a result of regulatory oversight, the authors note, X-ray machines and laboratory blood chemistry machines have been accepted as reliable. "EHRs, however, are not subject to regulatory oversight that validates accuracy or reliability," they point out.

"EHRs can be designed, configured, implemented, and used to render false representations," the experts continue. This and other indications of untrustworthiness, including unintentional errors, make unverified EHR documentation the equivalent of "hearsay" in court, they argue.

The experts also observe that not all EHRs are capable of performing audits that show when entries were made and whether and when they were changed. They cite a US Department of Health and Human Services Office of Inspector General report that stated that 44% of hospitals could delete their EHR audit logs.

Finally, they point out, some EHRs allow records to remain open or pending for "days, weeks or even years." If these EHRs also permit overwriting, a physician could change the record numerous times before closing and signing it, the authors note.

Are Audit Trails the Answer?

Dr Gelzer, a data quality and compliance consultant, told Medscape Medical News, "EHRs, because they're unregulated and because they show such variance in their actual use, require an additional level of authentication if you're going to use them as sources of evidence in legal proceedings."

EHR features such as the ability to "clone" notes, he said, "may be deemed unreliable for certain uses and purposes. Until there is some regime for establishing requirements for how these systems actually behave, to assume they are necessarily reliable is a problem."

How would a party to a malpractice suit prove an EHR is reliable? First, Dr Gelzer said, an information technology manager in a healthcare organization should attest to the EHR's reliability and authenticity. "Then you can ask further questions, such as, Do you have cloning enabled? What are your rules for executing copying? And are your audit functions disabled, corruptible, or deletable?"

Armand Leone, MD, JD, a malpractice attorney in Glen Rock, New Jersey, agreed with most of what the authors write about the problems that electronic records present in a legal context. However, he told Medscape Medical News, it would benefit neither the plaintiff nor the defendant to cast doubt on the reliability of an EHR, as that would undercut the testimony of an attorney's own experts.

The takeaway lesson from the law review article, he said, is that audit trails should be required in all EHRs and that providers should not be able to turn off the audit functions or erase the audit logs.

"Rather than attack the whole record, when you have a suspicion about a relevant, material piece of information in a case, that's where you need to be able to target and confirm when it was written and was it changed," Dr Leone said.

Neither Dr Leone nor George L. Paul, an Arizona attorney who has written a book on digital evidence, could say whether the reliability of EHRs has been a factor in any malpractice case to date. But Paul noted that the widespread use of EHRs is still new and that it can take several years for an issue such as this to be litigated, adjudicated, and appealed to higher courts.

Ave Maria Law Rev. 2014;12:257-289. Full text

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