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Issues relating to admissibility of EMRs have occurred “with increasing frequency,” both during the discovery phase of litigation and at trial, says Pamela S. Gilman, JD, a partner in the Boston office of Barton Gilman.
Kenneth N. Rashbaum, Esq., a partner with New York City-based Barton, notes that the EMR is, by definition, always hearsay, as it is an out-of-court rendition of events offered as evidence to prove the truth of those events.
“It is admissible only, for the most part, under the business record exception to the hearsay rule, though it can also be admitted as an admission against interest if the patient testifies in a manner that contradicts a statement he or she made that was in the chart,” Rashbaum says. However, since EDs rarely use printouts in the “regular course of business,” namely, treating patients, “these printouts are vulnerable to a hearsay objection, that the printout doesn’t qualify as a business record when it is offered into evidence,” Rashbaum says.
There are two ways around this. First, the plaintiff also will want to use the printout in most cases, so the defense can stipulate with the plaintiff to the admission of the printout into evidence. Second, the EMR can be produced in “native format,” the electronic form in which it is used daily by ED clinicians, and displayed on a monitor or screen for the jury.
“In some cases, particularly those which include MRIs, PET scans, or other images that don’t display well two-dimensionally, this may be preferable to a printout,” Rashbaum offers.
Gilman recently defended two cases in which information obtained by plaintiffs through court orders played a prominent role in the defense of the case.
“In the first case, a practice group was required to produce its internal staff messaging, which is something akin to private emails between colleagues,” Gilman explains.
Informal banter about the plaintiff’s condition led to the case being settled right before trial. “The messages gave the impression that the provider was cavalier, although she was very attentive to the patient and, according to the audit trail, reviewed the patient’s chart for over seven minutes when the nurse called her to discuss the patient’s complaints,” Gilman recalls.
In the second case, two practice groups were required to produce their internal staff messaging and their audit trails. At trial, the court ruled that certain aspects of the internal staff messaging were protected by the peer review privilege.
“Internal staff messaging, standing alone, is discoverable. However, information within the staff messaging can be privileged,” Gilman explains. For example, all staff messaging discussing other patients must be redacted.
“The court found that the purpose of the staff messaging was to notify the risk management department of the potential claim, which is protected by the peer review privilege,” Gilman says. These issues played a prominent role in the trial of the case, which resulted in a defense verdict.
The court also ruled that the plaintiffs could not suggest the meaning of certain codes appearing on the audit trail, because they could have taken the deposition of the independent software vendor to obtain the meaning of the codes.
“Whether to allow the codes to be admitted is within the court’s discretion,” Gilman notes. “Thus, it may be important to have the court address the admissibility of the codes prior to trial.” This allows defense counsel to decide whether to depose the software vendor.
Gilman expects to see more depositions of IT consultants and software vendors, given the complexity of EMRs. Her advice to EPs: “Be cautious about the substance of all communications, even those that you do not believe are discoverable.”
Financial Disclosure: The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor); Stacey Kusterbeck (Author); Jonathan Springston (Editor); Kay Ball, RN, PhD, CNOR, FAAN, (Nurse Planner); and Shelly Morrow Mark (Executive Editor).