LNCtips.com:  2 More EMR Problems

I work in a defense law firm, and I thought I had seen every electronic medical record (EMR) problem there was to see.  However, I recently became involved in two situations unique to electronic medical records that I hadn't encountered before.  Even though I work for the defense, these situations affect plaintiffs in a big way.

The first situation involved a large multi-specialty, multi-location group, which has been a client of our firm for many years.  When the group implemented an EMR system a few years ago, it got off to a rocky start.  Different specialties and different locations responded to authorization requests and subpoenas in different ways. Some would supply all the electronic records but not the older handwritten records.  Others would supply office notes but no other records, such as labs and radiology reports.  An attorney from my firm and I met with the group's risk management staff, and we standardized how the group should respond to authorization requests and subpoenas. That's why I was so surprised when we discovered by happenstance another problem with the way records were provided to patients and plaintiff law firms.  

A physician in the group had been served with a notice of intent to sue him, and was on a speaker phone with the attorney and me.  The attorney and I were looking at a printed copy of the records, and the physician was looking at the records using the EMR system.  The physician said, "I just don't know why they're suing me.  The allegations don't make sense.  You can see my plan and the conversation that I had with the patient right there in the comments section of the reports." 

We couldn't figure out what the physician was talking about.  Our copy of the printed records, which we had received from the plaintiff, didn't have any comments on them at all.  The physician took a screenshot photo of his monitor and sent us a copy.  Sure enough, the physician's copy of the EMR had numerous comments on it.  At first we wondered if the physician may have added the comments after the fact.  However, the audit trail showed that the comments were entered into the EMR system contemporaneously with the patient's visit.  This told us that the plaintiff had not been supplied with a complete copy of the records.  Apparently someone in the physician group had decided that patients didn't need to see physician comments.

That situation has since been rectified, but shortly thereafter, I encountered another unusual situation involving an EMR system.  Our client was a physician in solo practice who was sued by a former patient that he had treated for many years.  The physician documented his treatment of the plaintiff using three separate systems.  From 2001 through 2008, he hand wrote his records.  In 2009, he switched to an EMR system.  He scanned all of his handwritten records into that system.  In 2013, he switched to a different EMR system with a different vendor, and that's when his problems began.

As part of the discovery process, the plaintiff required that the physician produce his complete chart. Of course, our firm's LNCs review the medical records before we submit them to opposing counsel.  The physician provided us with only 16 pages of records for a patient he had treated for 15 years, so we knew the records were incomplete.  The physician explained that he was only able to access his medical records from the second EMR system, the one that had been in effect since 2013.  He further explained that the first vendor was angry that he had chosen another EMR system and refused to provide him with his own records!  Our firm had to threaten to sue the vendor to get it to release the earlier medical records.  Frankly, I'm surprised that the physician didn't threaten to sue the vendor before this situation.  After all, it was the duty of the physician, not the vendor, to maintain the patient's medical records.  The HIPAA implications of this situation are worrisome as well.

As an LNC working for either plaintiffs or the defense, it's important that you obtain and review the patient's complete chart.  In the second case presented above, it was easy to discern that the records were incomplete.  I'm really concerned about situations like the first case presented above, in which we accidentally discovered that we had an incomplete chart.  It's becoming clear that implementation of EMR has produced some unintended consequences.

...Katy Jones