Increasingly, forensic IT experts are called on to explain the complexities of electronic medical records (EMRs) in ED malpractice litigation. These EMR-related issues commonly confound attorneys:

  • Some “back populate” the record with the patient’s medical history;
  • Time stamps don’t always indicate the time an event occurred;
  • All information within the record doesn’t print.

A recent malpractice lawsuit against an EP alleged that a patient coded and spent two weeks in an ICU because he received a medication to which he was allergic. Since the electronic medical record (EMR) clearly documented the patient’s allergy to the medication, at first glance, it looked as though the EP had made a colossal mistake. However, this was not the case.

“The printed chart made it appear that the physician had ordered the medication in spite of the allergy information in the chart,” says Jill M. Steinberg, JD, a shareholder at Baker Donelson in Memphis, TN.

When the EMR was produced to the plaintiff, it showed the allergy, and the fact that the patient was given the medication. However, it did not show the date and time when the allergy was reported.

A forensic IT expert came to the EP’s rescue and revealed the EMR had “back populated” the allergy information to the ED chart. ED nurses had added the allergy to the patient’s chart after the reaction.

“We had to have forensic experts review the electronic record with the plaintiff’s own expert,” Steinberg recalls. The forensic experts showed that the allergy information was not a part of the history that had been given upon admission.

“Eventually, the lawsuit was dropped, but not until we went through several months of litigation,” Steinberg notes.

Educate Defense

Increasingly, both defense and plaintiff attorneys are turning to forensic computer experts for help interpreting EMR documentation of ED care.

Katharine C. Koob, Esq., an associate at Post & Schell in Philadelphia, says, “The use of IT experts changes the landscape of malpractice litigation from the time a case is filed through how it is presented to a jury.”

At deposition, defendants or witnesses are asked specifics on how their ED’s EMR works. Typical questions center around what information can be accessed in the EMR, and whether providers can make changes to their chart entries.

“This may require retention of a consulting IT expert to educate the lawyer regarding EMR software, enabling the lawyer to competently and diligently represent his or her client,” Koob says.

EMR audit trails are perplexing attorneys trying to decipher exactly what happened during the ED visit. John Tafuri, MD, FAAEM, regional director of emergency medicine at Cleveland (OH) Clinic and chief of staff at Fairview Hospital in Cleveland, says, “They are becoming increasingly aware that sometimes they need to take a really deep dive in this.”

Plaintiff attorneys sometimes think they have a strong case, until an IT expert reveals that the EMR audit trail is misleading. For instance, a timestamp for a lab test result might refer to the collection time — or the time results were returned. This can make or break the outcome of an ED malpractice claim.

Steinberg explains, “It is not always clear who entered the information or when it was put in the chart. It just becomes a part of the ED physician summary.”

Plaintiff attorneys can’t tell what choices the EP had from the drop-down boxes used for assessment, such as pain or orientation. “Thus, they do not know what was excluded when the nurse or physician checked a certain assessment parameter,” Steinberg notes.

‘Buried’ Evidence

Typically, the ED staff members are asked to produce the entire medical record to the plaintiff’s attorney. “This can be difficult for hospitals, in the age of electronic charting,” Steinberg says.

First, EMRs look very different printed on paper than they do in their electronic state. “Providers participating in the litigation process as defendants or witnesses may need to familiarize themselves with the records in an unfamiliar format,” Koob cautions.

The problem is that EMRs weren’t designed to be printed, which causes much confusion during litigation when the ED has to produce the “entire” medical record. “All of the information that is in the electronic chart does not print when the chart is to be produced,” Steinberg explains.

Steinberg also asks clients to consider language in the custodian affidavit that indicates that:

  • some electronic data and metadata relating to the patient’s clinical course cannot be reproduced through the mechanism of printing the records;
  • the records printed and produced consist of all data reasonably accessible for scanning and printing, as established by the third-party software vendor and the hospital’s IT department.

“There is always the potential that some portion of the documentation is in the EMR but doesn’t come out easily, unless you specifically look for it,” Tafuri offers.

Callbacks to patients are just one example. Understandably, EPs would assume that once these are documented in the EMR, they’d be clearly visible to anyone looking at the record. In fact, the callbacks conducted by EPs might be surprisingly hard to find.

“If you are not specifically looking for it, you might not be able to find it. If somebody subpoenaed the records, would they see it? I don’t know,” Tafuri laments.

That’s where IT experts come into play. “Having a forensic specialist go into the record and find every note and every detail, including the times logged, will become increasingly important in the future,” Tafuri predicts.

Evidence that could help the plaintiff sometimes is buried in reams of electronic data. “This is particularly effective when they discover more embedded information later that was not produced when initially requested,” Steinberg says.

One solution is to offer plaintiff’s counsel supervised access to the electronic records system. “This avoids counsel arguing that the medical provider was hiding something,” Steinberg notes.

IT experts sometimes find a surprise “smoking gun” in the EMR. Although medical issues can be complex and nuanced, most EMR issues are black and white, such as “Was the note put in after the patient experienced a bad outcome, or not?”

“Either a note is there, or it’s not,” Tafuri says. “It just might take a forensics expert to find it.”


  • Katharine C. Koob, Esq., Associate, Post & Schell, Philadelphia. Phone: (215) 587-1020. Fax: (215) 320-4787. Email: KKoob@PostSchell.com.
  • Jill M. Steinberg, JD, Shareholder, Baker Donelson, Memphis, TN. Phone: (901) 577-2234. Fax: (901) 577-0776. Email: jsteinberg@bakerdonelson.com.
  • John Tafuri, MD, FAAEM, Chairman, Regional Emergency Medicine, Cleveland (OH) Clinic. Phone: (216) 476-7312. Email: jotafu@ccf.org.