Using Computer Forensics on Medical Malpractice

Electronic Medical Records Litigation - EMR Audit Trails

Summary

The transcript of the video follows

Lee Neubecker: Hi this is Lee Neubecker, I’m here with Jim Meyer from Ialongo and Meyer, and we’re here today talking about patient medical records, specifically electronic medical records. Some of the changes that have happened that impact medical malpractice litigation. So Jim, can you tell me a little bit about EMR and how computer forensics plays a role in cases that you’re litigating, where you’re trying to get a result for your client?

Jim Meyer: Well EMR has changed everything, in regards to medical records. HIPAA is required that the electronic medical records, both be secure and private, that requirement provides that a lot of metadata is collected with every electronic medical record. That metadata itself is very important in… Capturing information about where, when, how and whom, made the medical record, can be crucial in any medical investigation.

Lee Neubecker: Look, can you tell me an example of what type of metadata you might be asking for, and why it would be relevant to the outcome of litigation?

Jim Meyer: Well… The metadata that is most interesting in most cases is, when certain events occurred in a medical record. When a test was ordered, when it was performed, when the results were placed in the patient’s medical record, when the physician saw those results, what orders may or may not have been entered as a result of that medical test. When medication is prescribed, when it’s administered, who administered the medication. Many of these details are now electronically captured, as opposed to being physically noted, as they were in old written medical records. It can make a… Big difference in trying to determine when events occurred in a case.

Lee Neubecker: I know one of the cases I was involved in, I discovered that many of the different default reports that are provided with these medical software packages, don’t necessarily show all available metadata. In fact, what we had to do on one of the cases, we had to work through discovery to try to get the scheme of the database. And then we discovered in once instance that there was something known as a sticky note, that the nurses and physicians could type little comments in, but there was a presumption that would never get printed because it’s not in any of the default reports. So what we actually had to do is find the table that had these notes, and then work to get the data dumped. And as soon as we found that, the case quickly settled, because obviously, the hospitals don’t want everyone knowing what’s going on.

Jim Meyer: That’s a disadvantage that a plaintiff in a case may have. Hospitals often times have entire departments in medical informatics, departments in which they have experts that know the in’s and out’s of the EMR, the metadata collected, often times plaintiffs do not, but they should be aware of the fact that that metadata exists. Extracting it from the record is often times… It is a need for an expert at computer forensics, expert, an IT expert. But it’s important that plaintiffs, and all attorneys, defense attorneys and plaintiffs attorneys realize that that information exists as metadata in these records, it can be obtained. We take great deal of effort to obtain it, but it’s there.

Lee Neubecker: And Jim and I co-authored a paper along with another attorney that appeared in the Illinois State Bar Association on EMR patient medical records, the audit trail and other things impacting HIPPAA and medical malpractice regulations. We’ll put that up here too so that you check that out. Anything else you’d like to add about your practice, Jim?

Jim Meyer: No, we’re happy practicing attorneys in Chicago, Illinois. I would recommend any attorney who is involved in any issue similar to this, to take a look at the article that Lee was kind enough to co-author with me and John Tomes, it really is a lot of information. Detailed information that attorney’s should know.

Lee Neubecker: Great, thank you.

Jim Meyer: You’re welcome.

Read the Illinois State Bar Article co-authored by the interviewed subjects on Patient Medical Records.

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