How E-discovery Is Changing ED Malpractice Defense
The key evidence in a professional liability action against an EP usually is the ED chart. This includes progress notes, expert consultations, imaging studies, and laboratory data — information that was available even with paper charts.
However, with the advent of electronic medical records (EMRs), “the concept of what a medical chart is, or should entail, has expanded,” says Richard F. Cahill, Esq., vice president and associate general counsel at The Doctors Company in Napa, CA.
Unlike paper charts, EMRs give “a much more detailed perspective of the relevant course of events as they progressed in real time,” Cahill explains.
With increasing frequency, counsel on both sides of professional liability litigation retain experts to review EMR data. “IT experts perform a deep dive into the available ‘raw’ information by conducting a highly technical metadata audit,” Cahill says.
Prior to EMRs, identifying and then obtaining all the relevant documentation often was burdensome and time-consuming. Paper records relevant to an ED patient’s care were maintained in several separate locations, and, in some cases, impossible to locate.
In contrast, metadata audits show who made every keystroke and at exactly what time. Every individual who reviewed the chart, made entries, and/or changed existing notes is identified. “In the new era of the electronic courtroom, key pieces of evidence can be readily displayed on monitors for simultaneous viewing by counsel, witnesses, the judge, and jurors,” Cahill notes.
Cahill says that in most claims, EMR charting helps establish that ED care comported with community standards and was performed in a timely and legally defensible manner.
Conflicts still arise regarding interpretation of data, and whether the EP used good clinical judgment. However, the basic facts, course of treatment, and reasons for the EP’s decisions are less likely to be in dispute, according to Cahill.
“Surprises during the discovery phase of litigation, and incorrect evaluations by counsel as to the relative strengths and weaknesses of their cases are, in many cases, minimized,” Cahill says.
Matthew Grygorcewicz, JD, an attorney at Boston-based Hamrock, Puleo & Oh, says EMR metadata can be valuable information. It can help attorneys understand what occurred during a distant medical event that has become the subject of malpractice litigation.
“It is important to bear in mind, however, that metadata merely makes a record of when providers have interacted with the EMR,” Grygorcewicz says. Metadata is not necessarily indicative of the overall time spent with an ED patient.
“The EMR never fully records a complete picture of real-time, on-the-ground human interactions between patients, practitioners, and the entire medical team, nor is it designed to do so,” Grygorcewicz explains.
Linda M. Stimmel, JD, an attorney at Wilson Elser in Dallas, often sees plaintiff’s counsel request the EMR audit trail. “This opens up an ED to more scrutiny and deposition requests,” she says. During discovery in one malpractice case, an EMR printed incompletely. This made it look as though no ECGs were performed. “We didn’t realize for almost a year that the chart was incomplete when it was printed. It caused undue stress and legal fees,” Stimmel says.
When plaintiffs attempt to portray EMR metadata in a negative light, says Grygorcewicz, it’s up to the defense team to give the judge or jury the entire clinical picture. Defense attorneys must explain any apparent discrepancies.
“Take the example of a timestamp that appears to show a provider interacting with a patient for only five minutes in the ED,” Grygorcewicz offers.
During discovery, the EP defendant can fully explain this piece of data. “Even if the timestamp accurately reflects the duration of treatment, an explanation is still helpful,” Grygorcewicz says. It’s possible that ED care was provided that wasn’t reflected in the metadata.
“The defendant will still have the opportunity to, hopefully, explain how that amount of time was sufficient to render care, and how the care rendered was appropriate and met the standard of care,” Grygorcewicz says.
- Richard F. Cahill, Esq., Vice President and Associate General Counsel, The Doctors Company, Napa, CA. Phone: (800) 421-2368 ext. 4202. Fax: (707) 226-0370. Email: [email protected].
- Matthew Grygorcewicz, JD, Hamrock, Puleo & Oh, Boston. Phone: (617) 450-8259. Fax: (617) 450-8251. Email: [email protected].
- Linda M. Stimmel, JD, Wilson Elser, Dallas. Phone: (214) 698-8014. Fax: (214) 698-1101. Email: [email protected].
In most cases, EMR proves standard of care was met.
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