More About Legal Issues With Electronic Medical Records

I recently discussed some matters concerning electronic medical records, including what constitutes a legal record, ways to maintain the record's integrity with devices like an audit trail, and preventing alterations to these records. Now we'll take a look at some other terms to be familiar with.

Patient Privacy:

Do you remember when the HIPAA first appeared on the scene? No more can you even keep a patient check-in form at the front desk, or risk having a patient learn who else had been in on that day. The penalty could include jail time.

Undue Burden:

Some recent legal cases have established that data that is accessible must be able to be produced, including backup data. Although this may seem an unfair burden for a medical practice, experts dealing with these sort of legal cases believe that EMR will result in a decrease of malpractice suits, as as result of better documentation and a lower rate of medication-related mistakes. Even so, if data is kept on a failed hard drive, and the costs of recovering the data is significant, it could create an undue burden; judges could rule that the expense be shared between the two parties.

Accessibility:

In the world of paper records, charts that are more than seven years old that were purged are considered legally 'inaccessible.' If a plaintiff's attorney asks you to produce the record, it is impossible. When it comes to electronic information, however, inaccessibility could be more difficult to prove, as electronic data can almost always be recovered. In fact, most of the current EMR software systems don't even let a provider delete patient records.

E-Discovery:

Discovery is the pre-trial phase in a lawsuit. Each party can compel production of evidence by means of a subpoena or a deposition. E-Discovery refers to information saved in an electronic format. The collection of digital evidence has even spawned the field of cyberforensics. This column cannot adequately cover a topic as broad as E-Discovery. This has become a major area of law and will become increasingly important as EMR becomes the norm. The bottom line for medical practices is that a reliable and secure backup process is a must.

Eventually, rational minds emerged victorious, and some of the more inane regulations have relaxed somewhat. There are still privacy issues which are specific to the electronic aspects of medicine, in regard to inappropriate disclosure of patients' data. An unauthorized email, unsecured wireless network, a computer monitor left on in view of another patient, and unauthorized report distribution are some prime examples.

Consider forming a Legal, Risk & Compliance (LRC) Committee for your practice, to address the above-mentioned issues and others which may arise. Continually ask yourself what mishaps could occur, including when, how, and by whom. Then, when you face a legal challenge, you will be better prepared.

Peter J. Polack, M.D., F.A.C.S., is founder of emedikon, a medical practice management consulting firm and president of Protodrone, a software development company specializing in medical practice applications. He is managing partner of Ocala Eye, a large multi-specialty ophthalmology practice. Find more useful articles and podcasts at http://www.medicalpracticetrends.com

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