Requests for metadata are increasing the cost of malpractice litigation, because it requires that attorneys invest time and money to determine its meaning.
"Once the defense presents the metadata, it’s not going to necessarily be in English. You need somebody to decipher it," says Thomas R. McLean, MD, JD, CEO of American Medical Litigation Support Services, a Shawnee, KS-based firm that provides attorneys with litigation support.
Attorneys are increasingly hiring information technology (IT) experts to help with this. "On the defense side, once you receive notice that something is going to be litigated, then you have an obligation to preserve the evidence," says McLean. One question is how much of the metadata in the patient’s medical record has to be preserved. "Theoretically, it’s all of it," says McLean. "But this could be viewed as unduly burdensome. These are questions that have to be worked out down the line."
Defense lawyers might need to hire an IT expert to decipher what the metadata shows. Michelle M. Garzon, JD, an attorney at Williams Kastner in Tacoma, WA, says, "I can’t keep it back from the plaintiff, but I sure want to know what it’s saying before I turn it over."
Even the wording used for discovery requests varies depending on the EMR system used by the physician practice or hospital. "There is a learning curve on how to request it, how to get it, and how to determine if it exists," says McLean. "You might have to depose the IT guy to get at this stuff. The Cerner data might not be the same as the Epic data or the VA’s EMR."
IT experts can help the plaintiff to prepare discovery questions and interpret what is received in discovery, and in some cases, might even testify in court.
In this case, says McLean, "you will need a highly articulate IT person. Otherwise, a good defense attorney is going to show that the person is confused and doesn’t know what they are talking about."
Suspicions are raised
EMRs give the defense the added job of explaining to a jury why the printout they’re viewing appears very different from what the provider viewed onscreen while caring for the patient.
"We have been trying to get a beta version from the EMR vendors to use in depositions, because it looks so different in the printout than it does to the providers," says Garzon.
A one-week admission might produce 1,000 pages with a lot of duplication. "Sometimes you can print it out one day, and if you print it out again the next week, it looks different," says Garzon. "That raises suspicions."
The plaintiff might have obtained EMR charting in a particular way in a previous case, but the information isn’t available in the same way for a subsequent case because the defendant uses a different EMR. "This requires an explanation of how the system works," says Garzon, "Otherwise, they think you are hiding something."