Medical records technology is changing the practice of medicine. Also it is changing the doctor-patient relationship. In the past when patients asked for a copy of their records they were looked at askance. Today many in the healthcare field encourage patients to maintain a copy.
The HIPAA Statute protects patient confidentiality. The Hitech Act is then an expansion of HIPAA. The Cures Act further expands both by giving the patient a right to access to the electronic records.
Electronic Medical Records
A key step in the review of any injury case is record review. Providers can receive incentive payments from the U.S. government for using electronic records. Within those records there is not only data but what is called metadata. This metadata are the fingerprints of who has touched the records.
Defining your Terms
In terms of getting complete medical records and getting complete audit trails, you probably need to be careful as to how you define your terms.
In terms of getting the medical records, you need to specifically ask for the medical or health records concerning the plaintiff which is intended to include:
- The electronic medical record;
- Any paper medical record;
- Any individually identifiable data;
- Records of care in any health-related setting;
- All handwritten and computerized components of the record;
- All administrative records;
- All health summaries, progress notes, consult reports, discharge summaries, operative notes, admission records and orders;
- All audio or video dictation recordings created by any medical provider;
- The entire designated record set defined by 45 C.F.R. § 164.501 which includes any medical and billing records, case or medical management record system records, and any record that is used in part to make decisions about the plaintiff.
Your request for audit trails or audit data must include:
- Records that document the date, time, patient identification and user or medical provider identification when electronic health information is created, modified, accessed, viewed or deleted and all records that indicate which actions occurred and by whom.
- Any documents recording audit trails, records of changed values, records of receipt of notifications, alerts and all record changes and deletions as well as records of all disclosures.
- The clinical audit report as defined by ASTM and all access reports, audit logs and audit trails as referenced by ASTM.
Trails and Logs
1. Audit Trails. The patient’s audit trail also called the audit log is a report containing time-stamped entries of actions such as the signing of notes, queries, views, additions, deletions and changes. Almost every electronic medical records system (EMR) has an audit trail report preprogramed. Generating such a trail typically takes less than 10 minutes. It contains information such as:
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- How much time was spent viewing something
- Alterations in the record after a bad outcome
- When a vitals-monitoring device was removed
- Whether all notes relating to the patient have been produced
- Life-saving care that the patient received that may not be reflected in the notes
- What notes were reviewed before examining a patient
- If a patient becomes unresponsive, which labs, tests and procedures were ordered and when they were performed and when the results were reported
And Also
- Internal communications between providers
- Each note has a distinct number in the “action” column will tell you such things as when it was created, signed, questions asked about it, viewed, modified, pended (saved but not signed). The “pend” action may be significant because it means that the note was saved and then potentially modified before it was ever signed. That original note will not be in the record because it was changed before it was signed.
- Filling in gaps in the timeline of care
- Identifying witnesses who are not identified in the medical record
- Noting system alerts that were triggered by vitals or lab values
- Identifying orders that are part of a formal policy or protocol or clinical initiative
- Identifying any delay in completing a note. This may indicate that the physician wants to see what the outcome is before crafting the note in the hopes of thereby minimizing liability exposure
- Stating whether vitals and other data were entered contemporaneously or backdated
As of July 1, 2022, Virginia Code § 8.01-413 will change to require the production of audit trail data from the provider when asked for.
2. Access Logs. Access logs are different than the audit trail. They are not a substitute for the audit trail. For instance access log may refer to a modification as simply an edit. The audit trail will be more precise and identify whether something was added or deleted. In addition the audit trail identifies each document by number.
3. Get all audits of the audit log. This will identify all interruptions in collection of audit data. In addition it will give an explanation of who interrupted audit data collection, why they did so and for how long.
4. Virtually everything is tracked electronically but don’t assume that it is preserved in the electronic medical records. It may be in some other file. Some examples of these other files are:
Complete Records
a. You want to know if a provider actually reviewed an imaging study and not just the report. You need to get the audit trail from the hospital’s Picture Archiving and Communications System (PACS) which is generally a separate system.
b. Many records systems have both a clinical and a practical side. The practical or practice side is referred to as practice management and you need to ask for all of the practice management EHR files.
c. Pathology records are typically maintained separately.
d. There may be hidden paper files maintained separately from the EHR.
e. To find out communications between physicians, ask for all written or electronic communications. You need to find out what system or device these are stored on, how they can be obtained and what mobile devices doctors and nurses are carrying in the hospital
f. If you’re dealing with a hospital fall case, you need to get all of the ESI relating to the bed alarms.
Medication Errors
g. In a medication error case you need all records, metadata and ESI from any Pyxis Medstation. Info about hospital pharmacies and laboratories is often maintained in a separate system along with info about their phone system and fax system.
h. All providers who give drugs are required to sign or record their name. Also the nurse is required to confirm the medicine was given. These times need to be compared with other times that appear in the chart.
Proximity
i. If you want to know whether or not a surgeon was actually in the room during the procedure you need to ask for the GE and Centricity Case Log.
j. To find out if the nurse actually checked on the patient as frequently as documented you need to ask for the Radio Frequency Identification (RFID) chips.
k. For info as to access and egress from any particular portion of the hospital you need to get the access card and key card logs for door scanners. Info about attendance or presence may be obtained from time and attendance software but you need to keep in mind that people may be able to log in and log out remotely.
l. If there is an issue in the case of where the doctor is at any time, then ask whether or not there is a proximity card. That proximity card may be a feature of the hospital monitoring system. It may be part of the doctor’s cell phone. If such a card exists, then it will tell you where the doctor is in relation to the hospital at any time.
m. Video cameras are in frequent use throughout hospitals. These may provide information as to access.
Drop Downs or Pop Ups
n. Clinical practice guidelines may be part of the pop-up within the records system. An example includes the Praxis EMR Clinical Practice Guideline Agent. This may be proof of what the standard of care is. To get this material you need to ask for all clinical practice guidelines, text messages, alerts, pop-ups, warnings or other information in the EHR.
o. To truly evaluate the medical records you need to ask for anything that may be in the drop-down box which may be keys or triggers to the providers as to things to consider in terms of treatment and also shortcuts in completing the record. There probably are templates within the system that are used by the providers.
p. The metadata may show what options the user is presented with before making changes to the record. It will reveal what different diagnoses or “differential diagnoses” are given to a doctor. All of that metadata helps to show the complete picture. In other words who made changes, when they were made and why they were made.
Doctor’s Orders and Nurse’s Notes
q. Doctor’s orders within the chart can be a problem because they may be summarized by department. Sometimes in these capsules the info such as who made the order, its time and the nurse who noted it may not be included. If there are questions about the timing or validity of orders then you need to get the audit trail. This audit trail will include all additions, deletions, and changes to the orders.
r. Nurse’s notes also may be a problem. To figure out what they mean you may have to get the data dictionary from the hospital. This will define terms used in the records. In addition you may have to get the audit trail as to the nurse’s notes. This should allow you to identify the nurses that provided the care and when they provided the care. In addition it states when they recorded the info.
Formatting
s. A report can be run identifying all changes made to the medical record and it will show what the record looked like before the change and then after the change.
t. Once data has been entered into any structured field, it can be filtered and sorted in a number of different ways. They can run whatever report they wish to. They can find out such things as every time that the patient had a heart rate of 102 on a given day of the week.
Request Form
u. You can obtain records now through the Hi-Tech Act. This requires providers to produce the records at reduced cost and faster. They are produced in electronic format. However a special HIPPA form must be used for this. Also be aware of the 2016 21st Century Cures Act which was designed to prevent info blocking in the creation and disclosing of records. Call or contact us for a free consult.
Medical Records Technology-Discovery
5. When taking the deposition of the corporate representative, request that the deponent have access to the audit log electronically during the deposition. Also be certain to bring your own laptop. The deponent can pull up the audit trail. Make sure that the deponent also has Excel in order to sort the audit log by provider first and then in chronological order.
What May be Excluded
Under HIPAA, the Cures Act and the Hitech Act, the patient has the right to access audit trails and inspect healthcare records. 45 C.F.R. § 164.524(a)(1). There are only two exceptions to that: the patient may not have access to psychotherapy notes or information compiled in anticipation of litigation. 45 C.F.R. § 164.524(a)(1)(i-ii)
To make sure that you have the complete record, you probably need to get the EHR User Manual or technical manuals which define what the complete record is.
Medical Records Technology-Smart Phones
Smart phones can be a means for enhanced treatment. Biosensors can pick up blood pressure, breathing, heart rate, glucose level, brain waves and more. Some providers allow diabetics to connect glucose monitors to the patient’s computer. This produces data for the provider.
Messages to and from your doctor should be on secure channels. Anything of an urgent nature should be dealt with through an office visit. Likewise messages that are involved or that will involve much back and forth should be covered through an office visit. Call or contact us for a free consult.
Medical Records Technology-Ask Questions
Being aware of what is in your medical records allows you to keep the doctor better informed. It also allows you to stay focused on the care plan. Sometimes in dealing with your doctor you may have to be the squeaky wheel. If the care plan does not make sense you need to question it. If the lab results don’t match the treatment plan you need to ask questions. Also if something about the care plan does not feel right then you need to say something.
Medical Records Metadata-The Whole Truth
Merely printing the entire record is not enough. Metadata is lost when only printed. Instead what needs to be produced is the file in “read-only” electronic format. That allows the user to read the record and print it as seen fit.
These types of requests are most often made in medical malpractice cases. They can also be used in more routine cases. Also routine crash cases may merit this type of disclosure if they involve a host of providers.
Medical Records Technology-Privileged Material
When an adverse event occurs in a facility, there may be a peer review meeting or what could be called a root cause analysis meeting. These may be protected. If there is such a defense objection raised, then the audit trail and the information related to those protected activities can be redacted on the audit trail with only the time column and the action column being preserved. What the action column will tell you is whether or not documents are simply being viewed or are they being deleted or added to. Anything that is being deleted or added to would be discoverable but those items that are simply being viewed that are part of the privileged activity would be redacted. This way you know that there is no chart modification.
Medical Records Technology-Getting Medical Records
Under the terms of Va. Code § 8.01-399.B, the court can order the signing of a release for the other party to obtain medical records out of state or at a federal facility.
Medical Records Technology-Contact Us
Medical records technology can help improve your knowledge base. Also it can improve the quality of care. In addition a site that may be of help is nlm.nih.gov/medlineplus/healthtopics.html . Also call or contact us for a free consult.
