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Many plaintiff attorneys now routinely request metadata from electronic medical records (EMRs), but in some cases, it ends up helping the defense.
"When you sort it out, it could hurt the provider. Maybe he looked at the EKG but didn’t do anything about it for two hours. But it can also support the doctor’s testimony," says Michelle M. Garzon, JD, an attorney at Williams Kastner in Tacoma, WA.
In a recent malpractice claim, a patient called an outpatient clinic to report continuing chest pain and was told to come in for a stress test. "The plaintiff had a massive heart attack before he was able to get in," says Garzon, who represented the clinic in the ensuing lawsuit.
"The plaintiff attorney was digging around in the EMR to see what the doctor knew when," says Garzon. The claim against the clinic was dismissed, after EMR entries showed that the nurse had appropriately conveyed the calls to the physician.
The way in which metadata affects the outcome of a suit can be surprising. "It may create a problem for the defense that wasn’t there previously," says Garzon. "Or it could, hopefully, answer the plaintiff’s question and make a suit go away."
The plaintiff attorney can obtain only whatever metadata exists at the time the suit is filed, notes Thomas R. McLean, MD, JD, CEO of American Medical Litigation Support Services in Shawnee, KS.
"To save metadata requires memory that you have to pay for, and especially for a physician’s office, that’s one way to reduce costs," McLean says.
If the suit is filed just under the statute of limitations which is typically two years, it’s possible that the metadata already has been lost through the course of normal usage.
How much metadata plaintiff attorneys obtain depends in part on the way the discovery request is worded. "Sometimes they ask for the entire admission, which we would usually object to as overly burdensome," says Garzon.
Even hospital medical records departments don’t always understand what’s contained in the EMR, which makes it difficult for the defense to respond to discovery requests.
"Getting answers on what they have is sometimes hard, even with big sophisticated hospitals," says Garzon. "I usually have to get an IT contact." Garzon is aware of one case in which defense attorneys had to obtain a declaration from an EMR vendor to explain why the printout appeared differently from the on-screen version.
"One of the more interesting questions is, What is the EMR?’" says McLean. "I think there’s a good argument that it also includes any electronic device that a patient may be hooked up and monitored with." For example, the anesthesia record isn’t typically preserved electronically along with the metadata it contains.
"But that information still exists when the suit is filed, potentially, depending on how much storage space machines have," says McLean. "As we go forward, physicians can be tripped up because they don’t realize that these devices also store data."
Some plaintiff attorneys choose not to delve into EMR metadata because it’s outside their comfort zone.
"If their careers have been in paper, they are happy to try the case the old-fashioned way," McLean says. "The Facebook generation of attorneys will have a whole different view of how to conduct a case using electronic evidence."
In other cases, plaintiff attorneys ask for metadata to answer a specific question, such as how long the physician stayed on the screen when an alert came up. "If it’s a short click, that would be more damning," says McLean. "That’s a situation where you might be willing to pay to do a focused metadata discovery, in order to impeach the physician."
However, Mclean says a tried-and-true approach can get the same result by questioning the hospital’s pharmacy director as follows:
"Does your EMR put up warnings for indications of drugs? Is Drug A in your formulary? If I tried to prescribe it, will there be an alert that comes up? Can you describe it?
If the director testifies that the alert says not to give the drug to anyone under 5 years old or it can be fatal, and the physician gave the drug to a 4-year-old, "that’s going to make the physician look bad," says McLean. "You can do it without going after the metadata. You certainly don’t need an IT guy for that."