EDs are bracing for a surge of complaints — not that patients are suddenly receiving terrible care. Rather, it is because patients are about to enjoy easier electronic access to their medical records, as required by the HHS Office of the National Coordinator for Health Information Technology’s Cures Act.1-3

Although the enactment date was pushed to April 2021, some EDs are in compliance already. “In the first few days after we enabled patients to have immediate access, our patient complaints within 24 hours of their visits jumped,” says Jonnathan Busko, MD, MPH, FACEP, ED medical director at St. Joseph Hospital in Bangor, ME.

Previously, the vast majority of complaints came in 60 to 90 days after an ED visit, right after patients received their bill. “Now that it’s so easy, more patients are immediately accessing their notes,” Busko reports.

People no longer have to go through the discovery process during litigation to find out everything ED providers charted. “If a nursing note throws a physician under the bus or vice versa, or if the notes appear to contradict each other, patients will have immediate access to that,” Busko explains.

With patients reviewing all the clinical documentation, plenty of misunderstandings can happen. “Even if great care was delivered, immediate access to the full range of notes can undermine patients’ perception of their care,” Busko observes. This is a sample of patient complaints:

  • ED providers seemingly disagreed as to whether their child was “lethargic.” For emergency physicians (EPs), “lethargic” is a red flag term that identifies a critically ill child. For many patients, and even many ED nurses, the term is used to describe increased sleepiness. A parent may have described their child as “lethargic,” and the ED nurse may have documented the child as “lethargic,” but the EP documented the opposite, that the arousable, interactive child was “not lethargic.”
  • The history of present illness was documented incorrectly.
  • The provider never mentioned lab results that were flagged as abnormal. Patients did not realize the results were just barely outside normal limits, or that the provider likely believed they were not clinically relevant.
  • The template note in the EHR included the word “obese” as a checkbox in the physical exam portion. “‘Obese’ has a very specific definition in medicine, but a negative connotation to most patients,” Busko notes.

In each case, ED leaders and members of the hospital’s patient experience team contacted the patients to address the concerns.

The Cures Act requires EHRs to be accessed without special effort on the part of the user, and specifically prohibits “information blocking,” says Cynthia A. Haines, JD, principal in the Harrisburg, PA office of Post & Schell.

Haines offers these examples of ED practices that could be considered “information-blocking” as defined in the Cures Act:

  • If an ED refused to share core clinical information with a rival hospital, or shares information only by a way that is expensive or inefficient (e.g., fax only);
  • If the ED refuses to share treatment records without a patient’s consent, despite the fact HIPAA does not require consent to share treatment records;
  • If the ED refuses to share mental health records across state lines, even if the patient has consented and no law prohibits it.

“Information-sharing in EDs is important because individuals don’t have relationships with the doctors treating them, and they cannot request who they want to see,” Haines says.

It is more difficult for patients to obtain their records from EDs than from physicians they see regularly. “Real-time access to health records could immediately end controversies over how soon a patient was seen, by whom, the initial impression, and whether treatment protocol was followed,” Haines offers.

Patients are discovering answers that previously would have been available only after attorneys obtained them through discovery requests. Thus, says Haines, “this should alleviate some lawsuits that are brought because of a lack of transparency.”


  1. OpenNotes. Open notes compliance date extended to April 5, 2021. Oct. 29, 2020.
  2. HHS.gov. HHS finalizes historic rules to provide patients more control of their health data. March 9, 2020.
  3. HHS.gov. HHS extends compliance dates for information blocking and health IT certification requirements in 21st Century Cures Act final rule. Oct. 29, 2020.