‘Hidden’ Information in Your EHRs Could Increase Your Liability Risk

When there is litigation against a psychiatrist, the integrity of the EHR data is one of the most important aspects to defending a lawsuit.

In “the old days” of paper records, plaintiff attorneys would occasionally attempt to discredit a defendant by uncovering alterations made to a paper record that “looked suspicious.” Today it is much easier for a plaintiff attorney to discover changes to the record by requesting the metadata of the patient’s record and having it analyzed through a health record “audit trail” conducted by an IT specialist. The audit trail is a path that can be followed showing who accessed the system, when it was accessed, and what information was entered or deleted. The use of EHRs makes altering a record without detection much harder because the system is recording everything a user is doing, regardless of whether the user can see all of the data being recorded.

As a result, plaintiff attorneys have been requesting metadata during discovery more frequently when they bring medical malpractice cases against a provider. They do this in hopes of finding something the provider did—after the lawsuit was filed or medical records were requested—to alter, or even cover up, information that was contained or missing from the original version of the medical record.

When a provider “alters” a medical record in any way after the fact, an otherwise defensible case may become one requiring settlement. Also, some medical malpractice policies specifically exclude or significantly limit coverage for a lawsuit once an altered medical record is discovered, leaving the insured defendant financially vulnerable.

Providers facing litigation who have a legitimate reason to change an EHR entry after the fact should consult with their legal counsel or risk management professional for guidance before making any changes to the EHR. Oftentimes, what a provider thinks may be an important update to the record is better served through testimony at deposition or trial, rather than making changes after the fact to the EHR.

If a legal or risk management expert agrees with updating the patient’s record to either correct an error or include an addendum or a late entry, the provider should ensure that the original entry and original date and time stamp are viewable and then include the current date/time of the amended entry as well as the name of the person making the change and the reason(s) for the change. These details will help ensure the integrity of the record and avoid claims of altering evidence after the fact. Remember, metadata will reveal what was changed, by whom, and when.

Providers facing litigation who have a legitimate reason to change an EHR entry after the fact should consult with their legal counsel or risk management professional for guidance before making any changes to the EHR. Oftentimes, what a provider thinks may be an important update to the record is better served through testimony at deposition or trial, rather than making changes after the fact to the EHR.

If a legal or risk management expert agrees with updating the patient’s record to either correct an error or include an addendum or a late entry, the provider should ensure that the original entry and original date and time stamp are viewable and then include the current date/time of the amended entry as well as the name of the person making the change and the reason(s) for the change. These details will help ensure the integrity of the record and avoid claims of altering evidence after the fact. Remember, metadata will reveal what was changed, by whom, and when.

Just as poor recordkeeping and poor data integrity can hurt you in litigation, keeping thorough, accurate, and timely medical records, supported by the metadata, can assist your defense in documenting your thought process in treating the patient. Remember, detailed recordkeeping and good data integrity go a long way toward successfully defending a lawsuit. ■