Sued for malpractice, electronic medical records subpoenaed - where to begin?

July 1, 2007

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He complied with this discovery request. Dr. Records soon thereafter received a subpoena for all electronic medical records relating to this patient. Since he has used electronic records for three years, he was not surprised to receive this additional request. The problem Dr. Records must address is that with each software upgrade, some of the records may have been lost. In addition, the subpoena demanded all e-mails between him and his patient. Because Dr. Records uses his desktop, home and phone-based computer systems to send e-mails, he does not know where to begin with his attempt to provide all his records. What is the law as it relates to electronic medical records?

E-conundrums

These amendments have tremendous potential to overwhelm litigants who are not prepared to address the enormous volume and variety of electronically stored information (ESI) subject to production in medical malpractice discovery.

Electronic health records (EHR) are considered an aspect of ESI. Thus with any request for medical documents, the physician must review all aspects of his or her EHR to ensure compliance with the new federal discovery requirements. With this reality comes the need for safeguards to ensure that EHR information is not altered, improperly disclosed to third parties or improperly destroyed. Dermatologists, and all healthcare providers, should not underestimate this challenge given the sheer volumes of ESI that are increasingly being stored in databases of EHR systems. Furthermore, the production of ESI contained within the EHR must remain accessible over time despite the technological advances and/or obsolescence of the system on which it is stored.

With the further development and widespread use of EHR, physicians may face increasing difficulty attempting to locate every source of ESI in order to produce it for the purposes of litigation. Much will depend on the architecture of the EHR system. With increasing use of Web-based EHR systems, ESI may be stored in one placed or may be compiled and stored in multiple locations. In addition, portions of the EHR may be transmitted to other electronic locations. The advent of handheld computers also means that portions of EHR may reside in the memory of multiple mobile devices.

EHR may also encompass various types of information. ESI may include chart notes, biopsy reports, photographs, consent forms, documentation of phone calls, treatment logs and e-mails. All may be stored in different formats, side by side in the EHR. The manner or means by which this data is stored in the EHR may vary. The possibilities remain endless.

If the ESI is produced from multiple sources, the authenticity and integrity of the original electronic records will be critical for negating the question of alteration of ESI, or - worse yet - destruction of evidence. In the end, it is up to the physician to be able to track each of these types of data and access them within deadlines now imposed by the new rule.

Dr. Records may find the new "discovery" requirements overwhelming. However, with the increasingly common use of electronic medical records comes the burden of the new rules. These rules are here to stay. Dr. Records has no choice but to comply with the subpoena. He is required to provide all records relating to his suing patient - including relevant e-mails.

Dr. Goldberg is the director of SkinLaser & Surgery Specialists of New York and New Jersey; director of Mohs surgery and laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.

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