How to Compel Discovery of Electronic Medical Records

EMR Audit Trails as produced by Healthcare Providers during medical malpractice discovery frequently filter out important history of the patient’s medical record. Learn how to compel discovery of the patient’s complete EMR history.

Are you attempting to compel the production of a patient’s electronic medical chart and the complete electronic medical record audit trail?

Medical malpractice litigation today routinely requires obtaining the complete electronic medical record audit trail. Compelling the entire patient’s EMR Audit Trail Discovery is vital to the case. Hospitals, clinics, dentists, and other health providers are required to document patient interactions in electronic HIPAA compliant Healthcare Information Systems (HIS). Electronic Medical Records (EMR) also referred to as Electronic Health Records (EHR) are used almost interchangeably. Requesting and receiving the complete EMR for a harmed party can be a daunting process, especially when health care providers produce voluminous audit trail reports in paper form that lack any clear documentation of exactly what changes were made to the EMR.

HIPAA compliant HIS software providers are required to log all access, review, editing, and deletion of records. Such logs must include a record of the user making the change, the source computer that made the change, the date and time of the records actual creation (this can be different than the date and time stamp that appears on the printed patient chart or progress notes), and all versions of the chart as it existed at various points in time. While the HIS software providers maintain HIPAA compliance, ensuring that deleted or revised patient records remain in the HIS record, those earlier revision instances or deleted (marked inactive) records are routinely left off the patient’s printed EMR. By design, the EMR audit trail reports lack the specific modifications being made and by whom. It is often necessary to formulate your discovery request in a specific way to ensure that all audit trail logs from all of the various HIS-connected systems are produced in such a way that provides a clear understanding of health care events that took place.

The following graphic depicts the typical process involved with retaining a computer forensics expert skilled in deciphering EMR to assist with compelling discovery of the complete patient electronic medical records, including the revision history.

1. Request Patient’s Complete Electronic Medical Records (EMR)

It is important that your discovery request includes important relevant details and enough specificity to ensure you receive a comprehensive production of available information without having unnecessary filters applied. We have seen routine usage of filters such as named users, narrow start and ending dates, departments and other available filters that result in receiving an incomplete production of the patient’s EMR. If you would like a sample electronic medical record discovery request list of items, please call us and we would be happy to share our sample request with you. Engaging our firm early on in the process can help speed things along.

2. Review Produced EMR Records

Reviewing the timeline of events and the complaint to develop an understanding of the critical moments when decisions were made or not made leading to harm to the patient is usually the starting point for engaging a computer forensics expert to assist you. Following the review of the case documents, converting the EMR produced to a more usable format is important before analysis begins. Ensuring that the EMR has been OCR’s, adding page labels to the document if missing saves time downstream and allows for surgical review of voluminous EMR to isolate records of care by date, time, health care provider name, medication, or other activity. Summarizing data and performing focused reviews around key dates and times can provide important insights.

3. Identify examples of withheld records or apparent manipulation

During the review process, it is helpful to identify examples of abnormalities or notations that indicate other data referenced is not contained in the production of the patient’s EMR. Reviewing the complete EMR records produced, not just the critical dates and times, can often help establish normal patterns of EMR and can be used in contrast to critical dates and times where EMR appears to be missing from the record. Skilled and experienced EMR data forensics experts often find indicators of manipulation that may not be readily apparent to someone who is not an EMR data forensics expert. Plaintiff’s medical malpractice counsel should send a written or emailed request to the health care provider to produce apparently missing records. This documentation of asking for the missing data will be helpful later when a motion to compel is filed with the court. Judges always like it when litigants attempt to work things out first amongst themselves before seeking judicial intervention. It is not uncommon that our firm is retained at this stage when the non-expert has reviewed the EMR produced and suspects something is hinky. Having your EMR data forensic expert assist with drafting the follow-on request for missing EMR can help lay the foundation for a later affidavit in support of a motion to compel.

4. Review Supplemental Production of Records if Received

In many cases, healthcare providers will partially respond to a supplemental request for EMR. The production oftentimes still lacks the clear ability to correlate the revision history of the patient’s chart and medical record. The review of all of the EMR produced to date is important in beginning to build the argument to be included in the future EMR expert witness affidavit in support of an onsite inspection of the HIS to obtain the patient’s complete EMR including the revision history.

5. Affidavit in Support of Motion to Compel Onsite Direct Inspection

The EMR data forensics expert must lay the foundation documenting their credentials, what they reviewed, significant findings, notes of any deficiencies in the production, and establishing that additional information not produced by the health care provider may be available from performing an onsite inspection. Direct engagement with the HIS can often reveal additional details such as the actual time or original entry of a notation as well as the life cycle of modification over time showing which device was used to access or modify the notation, what user accessed/modified the record, and the current status of records entered into the EMR. Inactive or deleted notations may be revealed on some HIS systems by toggling the view settings to show inactive records. The sworn statement by the EMR data forensics expert is an important tool in winning your motion to compel and often is filed with the motion, or submitted shortly after and before the hearing on the motion. In some cases, sharing the EMR data forensics expert’s curriculum vitae with the health care provider and the signed affidavit in support of the motion to compel onsite recorded inspection of the patient’s EMR may result in an agreement to allow inspection without the court’s order or an acceptable settlement offer. It never hurts to try.

6. File Motion to Compel Onsite Direct Inspection of the EMR System

Usually, to obtain direct onsite inspection of the healthcare provider’s HIS is a request likely to encounter objections and resistance. Filing a motion to compel and providing a supporting EMR expert witness affidavit can help overcome objections. A federal U.S. District Court ordered a hospital to provide such direct access to a patient plaintiff in a medical malpractice case. (Borum v. Smith, W.D. Ky. No. 4:17-cv-17, 2017 U.S. Dist. LEXIS 109249 (July 14, 2017)). The court’s decision and arguments can be viewed at this link. Onsite inspections can also be performed using remote control/viewing software such as WebEx, Zoom, TeamViewer, and others if the court allows and so orders. Typically, healthcare provider staff or HIS software consultants with administrative access to the HIS will perform the actions directed by the plaintiff’s EMR consultant and allow for recording screenshots of the patient’s EMR as viewed within the software.

7. Court Testimony in Support of Motion to Compel Onsite Direct Inspection

Having your EMR expert present in the hearing on your motion to compel usually takes place in person or via a remote video conferencing tool such as Zoom. Since the outbreak of Covid-19 began to escalate in 2020, courts have become more comfortable with allowing remote experts to appear via electronic video conferencing, making it easier to retain the most knowledgeable EMR computer forensics expert witness without concerns over the geographic location of your expert witness. Allowing the judge to ask questions of your EMR expert witness directly and assist you with responding to any raised objections has been proven to be highly effective in winning the motion to compel onsite inspection of the plaintiff’s EMR.

8. Onsite Inspection

Once the court has granted the motion to compel an onsite inspection, it is important to ensure that any in-person meeting isn’t a waste of everyone’s time. Problems that can arise include the health care provider producing someone to operate the computer terminal who is not knowledgeable about how to use the HIS or that lacks full administrative access to the complete backend databases containing detailed historical information including revision history of the EMR. In some cases, such as Cerner and Epic, some screens can be viewed in the software that will show progress notes and the revision histories including the user name modifying or entering the record and the times the record was updated by the user. In other systems, it may be necessary to access the back-end database system with administrative credentials to perform Structured Query Language (SQL) queries to identify the relevant record history. Having an EMR expert that has experience writing SQL database queries is important when the HIS doesn’t offer a built-in report or display view that can show the complete historical record of events.

9. Review Records Captured Onsite

Following the onsite inspection, it is often necessary to review in more detail the screenshots and video footage documenting the EMR in the HIS. Reports generated during the onsite may need to be compared against earlier productions of EMR to help document any records that were withheld. Where it is provable that the healthcare provider withheld patient EMR, it may be possible to petition the court to order reimbursement of expert witness fees associated with the consulting engagement.

10. Write Final Report

Many times, a final report is not necessary. Typically, once it is established that records were withheld, or it is believed to be known that this may be the case, it is more often than not that a settlement offer is made to the plaintiff when obfuscation or manipulation of the patient’s EMR took place. If no acceptable settlement is reached, writing a final report in the form of a sworn affidavit to detail the delays and extra costs associated with discovery is important for petitioning the court to award expert fees. Other times, the data obtained from the onsite inspection can be presented without a report or sworn affidavit. Photos and videos can sometimes avoid the need to generate a final report.

11. Expert Witness Deposed

Should an acceptable settlement offer not have been reached, the EMR expert witness will be deposed. This typically is preceded by a request for the disclosed expert witness’s communications with counsel and any work product or notes. Working with an EMR expert witness that has been deposed numerous times and has achieved successful outcomes following the given deposition can make or break your case. If the defense counsel can undermine the credibility of your expert, the admissibility of any of the opinions sworn to by your expert may be excluded. If your EMR expert witness is successful at establishing that records were held back or manipulated and provides a reliable deposition in support of those opinions, your case matter is likely to receive a reasonable settlement offer proportionate to the offenses and harm caused to your client.

12. Trial Testimony

It is rare that you will need your EMR Expert Witness to testify at trial regarding manipulation or withholding of evidence. If the facts exist and have been produced, they often speak for themselves. Many healthcare organizations face frequent malpractice litigation. If it is established in the public record that a healthcare organization permanently deleted a patient’s EMR, that organization could lose Medicare/Medicaid funding for not maintaining HIPAA compliance, a problem that could far exceed paying out a settlement to a single aggrieved party.

13. Case Settles

Medical malpractice cases often settle when it has been established that the records have been altered to distort the true record of patient care. Having news reports published detailing how a healthcare organization manipulated historical patient EMR to mask a mistake resulting in the harm of the patient would only invite more litigation by other harmed patients. In the interest of protecting their organization from further litigation and more intrusive discovery, healthcare organizations need to maintain their profitability and minimize costs paid out for ongoing litigation.

Summary

When you are getting stonewalled by a healthcare organization and feel that you are receiving cryptic EMR audit trails, or a production that is missing data that should exist, having an experience EMR computer forensics expert witness and consultant on your side can help you achieve a better outcome for your client. If you would like to discuss a case matter with us, we are happy to provide a complimentary consultation. Call us today at 312-668-0333.

Electronic Medical Records Manipulated Post Lawsuit

Hiring an expert in electronic medical records (EMR’s) will help uncover record manipulation that will assist law professionals in winning medical malpractice cases for their clients. Check out this blog to see how a Kentucky woman waged a monumental fight against the medical system that failed her!

A site visit by an expert pays off, a Computer Forensic Expert Finds the Smoking Gun in the Electronic Medical Record (EMR) audit trail!

Kim Johnson noticed a lump on her right breast and because her mother died of breast cancer she feared the worst. In January 2015, she went to Fleming County Hospital in Flemingsburg, Kentucky, to get a mammogram. When she received a letter from the hospital that proved she had “no evidence of cancer”, this Kentucky mother of eight breathed a huge sigh of relief. Several months had passed and the lump continued to grow so she decided to get a second opinion. She was horrified to learn she has stage 4 cancer.

Sadly, Fleming County Hospital had sent the wrong letter, giving Johnson the all-clear instead of directing her to return for a follow-up examination. In September 2016, Johnson filed a lawsuit against the hospital claiming doctors misdiagnosed her, and that two employees deleted evidence of the letter saying she didn’t have cancer. How did she know this?

She hired a digital forensic expert!

Ms. Johnson and her lawyer’s hired a digital forensic expert skilled in examining EMR audit trails. During a court-ordered on-site visit, they found employee EMR entries that edited the history and deleted the evidence of the erroneous letter claiming that she was cancer-free.

In the wake of the misdiagnosis by the hospital, Ms. Johnson is left with a long battle with cancer. If her cancer would have been recognized at an earlier stage her quality of life would have been different as a result. She trusted the system and it failed her.

Who protects the patient? The HIPPA law ensures accountability

Required by the Health Insurance Portability and Accountability Act (HIPAA), hospitals and healthcare providers are to maintain an audit trail of all access, entry, and modification of the patient’s EMR to ensure accountability. Hiring a computer forensics expert that has experience with examining Health Information Systems (HIS) and the related EMR audit trails that can make or break your case. Call Enigma Forensics staff today if you think you may have a case requiring similar assistance. 312-668-0333.

To Learn More About EMR Audit Trails

Filters Used to Withhold the Complete Electronic Medical Records

The universal implementation of electronic medical records (EMRs) has become the single most important piece of evidence used in medical malpractice litigation. In response to an EMR Discovery request, healthcare providers use various filters to create useless or hard to read data. Hire an expert to help you weed through the audit trail and to present Discovery requests relevant to the case.

Healthcare providers use filters to withhold electronic medical data when complying with a court order and producing EMR audit trails. During the discovery period, EMR audit trails are commonly used as the single most important piece of evidence in medical malpractice litigation. Knowing evidence is in the details, has led to a chess game of filters proving “Not all electronic medical records (EMRs) productions are created equal!” Figuring out how electronic medical records (EMRs) are filtered is a game changer!

Follow the filters!

When counsel requests a patient’s electronic medical records (EMRs) to review for evidence, the production is often delivered in non-electronic limited formats, such as; scan documents, PDF, or image files. Filters provide limited format productions of (EMRs) therefore it becomes extremely difficult to read and find evidence. Are hospitals and healthcare facilities doing this on purpose? Are they filtering their production to include irrelevant information with very little details about the event in question? They are not making it easy that’s for sure. In truth, they are complying with the court order and producing files that include the electronic health records of the plaintiff. They’re just not providing data information in its completeness. Using filters to produce audit trails is fairly common, but for the injured party and representing counsel these tactics are extremely excruciating. Requesting electronic medical records (EMR’s) is now a challenging game of filtering chess!

Forensic Experts know how to request data essential to your case.

It is quite common that hospitals and healthcare facilities use a variety of filters that will result in an incomplete production. When forensic experts study the production headers they uncover filters that were used to produce an incomplete EMR audit trail. Experts know how to ask for relevant data and dig deeper to find evidence.

Filters, Filters, and More Filters!

  1. Date filters that are applied could exclude alteration of records after the event took place. We suggest the best practice is to use the earliest known date prior to the medical event as a starting point and place the end date the same as the current date of the request. Pushing the end date to reflect the current date will show who looked at the record post-event.
  2. Department filters will only return records that are from one particular department, such as radiology or another department.
  3. Employee filters include specific employees of the healthcare facility. If an EMR record only shows entries related to a physician’s user IDs this can be problematic. It’s important to know all of the names and user IDs of all healthcare providers that visited the patient.
  4. Workstation filters are specific to desktops and/or workstations and could be the cause of incomplete production.
  5. Location filters are used by healthcare providers to limit the full scope of production. It is not uncommon for physicians to access important medical records remotely. This could cause manipulation of data by remote access and filter out data after the event in question.

Enigma Forensics has years of experience developing requests for electronic medical records (EMRs). Our experts know how to ask the right question to retrieve the necessary data to be used as evidence. Save yourself time and expense and hire an expert! Our experts are CISSP certified (Certified Information Systems Security Professional) that provide testimony as a professional witness in a court of law.

Please call Enigma Forensics at 312-669-0333 for a complimentary consultation.

How important are Electronic Medical Records (EMR)?

Have you or someone you know been involved in medical injury or accident? Do you want to win your case? Or…If you’re an attorney and have questions about a case involving medical malpractice, read this blog and contact Enigma Forensics for the “W”.

Were you or a loved one involved in a medical accident or injury? Are you an attorney who is representing an injured client?

If the answer is yes, take immediate action and file a Discovery request or subpoena to access all of your Electronic Medical Records (EMR). Why is this important? In order to prove injury or malpractice and win your case it’s imperative to discover what took place and the actions that caused an event. Your electronic medical records or EMR audit trail will document what transpired. EMR audit trails will include prescriptions, tests, treatments, transfers, operation notes, nurse practitioners and doctors notes and a ton more. Electronic Health Records (EHR) are rich with data information describing the care that was provided and decisions that were made good or bad. Some medical record systems such as Epic have sticky notes that are traditionally not part of the formal patient permanent electronic record. Those sticky notes are required to be stored by the Health Insurance Portability and Accountability Act (HIPPA), but are not part of the discharge report showing the patient electronic medical record history. The data does exist and working with a qualified medical record forensic expert can help you to gain a more complete record of the patient encounter with the health care provider.

What else does Electronic Medical Records (EMR) include?

Electronic Medical Records and the patient medical record audit trail include the original record and will note any modifications. It will also preserve dates, times, who accessed the record and whether the record was printed, viewed, deleted or otherwise modified. Many of the systems today, such as; Epic, Cerner, Meditech, All Scripts and others have reports that can be downloaded to reveal vital information about who has authorization to access and audit electronic health records.

Medical dictations are another vital piece to the puzzle. Dictation files are sometimes sent to third party transcription service providers as raw audio files called WAV files. After the WAV files are received they are typically transcribed to text files and fed back into the electronic health record software system. When modification of the patient medical record occurs after an injury or malpractice took place, comparing the transcription WAV files to the produced chart may help reveal alteration to the patient medical records.

Patient Electronic Medical Charts are often Incomplete. You could lose your case!

When electronic medical record discovery requests are made by plaintiffs to healthcare providers, it is common that the production lacks the complete patient medical record history. Healthcare providers facing litigation commonly provide a minimal amount of data in an often useless format. The form of production is often scanned copies of previously printed our documents or charts. Codewords for health care providers, departments and procedures often make interpretation even more challenging. Having an experience EMR computer forensics expert can help provide a more accurate interpretation of the complete Electronic Health Record (EHR) for the harmed patient.

The Health Insurance Portability and Accountability Act of 1996, or HIPAA is a federal law which requires your medical records to be retained for six years at a federal level. However, most states also have their own medical retention laws which can be more stringent than HIPAA stipulates. Check out this government website to learn about how different states interpret this governance. https://www.hhs.gov/hipaa/for-professionals/privacy/index.html

How important are faxes? This could win your case!

In some cases, Electronic Medical Records (EMR) are faxed to outside providers either to or from your primary physician. Software vendors such as Forward Advantage provide automated faxing capabilities integrating with the existing health care information management systems and patient medical records. It’s vital you request all communication between facilities to help prove or disprove what and when medical knowledge was presented to the provider to make an informative decision relatable to an event.

Let’s say you have already requested an EMR audit trail for a patient. Did you know that the Electronic Medical Records (EMR) audit trail you received contains cryptic codes that you will not be able to comprehend. It’s extremely helpful to request all of the underlying data dictionaries that will provide the definition of the codes used referring to the friendly name, including, the healthcare provider’s name, department, computer used to access the EMR, procedures, treatments, tests ordered, drugs prescribed and lab results.

Did you know that medical data is required to be retained for six years?

Do you want to to win your case! You need Enigma Forensics experts on your team! Hire a professional forensic expert to assist in writing a Discovery request to obtain, preserve and analyze ALL of the electronic medical records and to help you obtain the complete EMR audit trail. We can help uncover the truth of what took place and help tell the court the story about what happened to you or your client.

Call Enigma Forensics at 312-668-0333 to schedule a complimentary phone call to discovery how we can assist.

More about Electronic Medical Records

EMR or EHR what is the difference?

EMR or EHR are synonymous. Both are medical records. The electronic medical records or EMR reveal an audit trail of what transpired during a medical or health visit. Each record is unique and tells a story about the patient. We are experts that can assist you to win your case!

Electronic data records are taking the place of the old school hard copy files and completely revolutionizing the way data is gathered and stored. Electronic Health Records (EHR) or Electronic Medical Records (EMR) are synonymous with each other. (EHR) is data that includes the patient’s vital information such as an address, medical history, allergies, immunizations, lab tests results, radiology images, and vital signs, also, personal statistics like age, weight, sexual orientation, and insurance information. (EMR) is an individual’s private health data that is stored in a protected database only accessible to medical personnel in compliance with The Health Insurance Portability and Accountability Act (HIPAA) regulations. EHR’s or EMR’s make patient charting easier and results in fewer errors and keeps this delicate personal information private and secure.

Medical data can be manipulated!

Medical data can be altered and inserted into EMR systems and made to look like it was there all the time or not there at all. Medical malpractice lawyers rely on EMR audit trails to tell the story of either side of a case; the plaintiff or the defendant. Medical records are marked by metadata or raw data. This data is developed separately from the EMR system making manipulation detection visible by reviewing the raw data and the database logs. Metadata can also be described as underlying data, like a digital footprint that creates an audit trail. In order to analyze raw data, you will need to hire Enigma Forensics; we are experts in the field of electronic medical records (EMR) or (EHR).

During a forensic review of EHR’s or EMR’s, we can authenticate or reveal backdating, back charting, data editing, or falsification of records. We have been on both sides of medical malpractice cases and almost always save our client a considerable sum of money. We work closely with the attorneys involved to help with eDiscovery verbiage and assist with what to look for.

Electronic Medical Records
Electronic Health Records and eDiscovery

Complete list of eDiscovery Questions For Electronic Medical Records

Enigma Forensics are experts in collecting and understanding electronic medical records or the EMR audit trail. Check out this blog to view our list of EMR Discovery Questions.

Electronic Medical Records (EMR) can be tricky! In most cases, during eDiscovery, you get what you ask for and only what you ask for! Every Discovery request involving a healthcare provider has unique aspects that need to be considered.

Enigma Forensics is an established Computer Forensic Expert Witness firm that has been involved in many medical malpractice cases and specializes in interpreting electronic medical records (EMR) audit trail or audit logs. Our staff has extensive experience with numerous EMR applications and can assist you with navigating through the challenges of EMR Audit Trails and/or Audit Logs. Electronic Medical Record a.k.a., EMR audit trail or log is the answer to who knew what when, in essence, it tells the story about what took place during the treatment of that patient.

The following is a list of important questions to file for the demand for eDiscovery for Electronic Medical Records, in a medical malpractice case.

  1. Provide the name of all medical software applications utilized to store [Patient Name]’s Electronic Medical Records (EMR).
  2. For each medical software application that contains [Patient Name]’s EMR, please provide the specific version of the software as well as the name of the company that produces the software during the relevant time period beginning on [beginning date] through the present date.
  3. For each medical software application that contains [Patient Name]’s EMR, please indicate if any of the specified software applications were migrated off to a new platform and what the current status is of [Patient Name]’s EMR on the original system.
  4. For each medical software application that contains [Patient Name]’s EMR, please provide the application administrators that have full access to the stored data and audit trails.
  5. For each medical software application that contains [Patient Name]’s EMR, please provide all user and administrator manuals for each of the medical software applications.
  6. For each application that contains [Health Care Provider Name]’s EMR, please provide the current retention settings for the audit trail for all patient’s EMR. Are the privacy log retention settings sent to a secondary audit log (e.g., Fair Warning)? Is the secondary audit log retention configurable within the systems and/or applications?
  7. For each application that contains [Health Care Provider Name]’s EMR, please provide the earliest date that [Patient Name]’s EMR appears in the application’s audit trail.
  8. Please provide the complete EMR audit trail for [Patient Name] detailing any health care provider’s access, review, modification, printing, faxing, or deletion activities in a comma-delimited format with any and all corresponding native files that may relate to the Electronic Medical Record for [Patient Name] as required by the Health Insurance Portability and Accountability Act § 164.312(a)(1).  Such an audit trail should include the original values and new values for any alteration of the EMR and shall indicate the user making the change and the date and time of the change.
  9. Please provide the data dictionary for each software application containing  [Patient Name]’s EMR.  Such dictionary shall include the username key that maps the real names of individuals to their unique user login account IDs for each medical software application containing any EMR for [Patient Name] as required by the Health Insurance Portability and Accountability Act § 164.312(a)(2)(i). Additionally, any lab test, codes, or other short-form identifiers included in  [Patient Name]’s EMR Chart or EMR audit trail should be provided as part of the data dictionary production.
  10. Please provide any and all original voice transcription recordings that were made by [Health Care Provider Name], or any other staff that related to [Patient Name].
  11. Please provide any other native electronic files or emails that relate to  [Patient Name] in the native format with an index containing the original unmodified metadata for each of the native files or emails produced.
  12. Please provide any DICOM files that were captured as part of [Patient Name]’s treatment by [Health Care Provider].
  13. Please provide electronic records of any outbound faxes and/or other methods of communication that were utilized by [Health Care Provider Name] to [EMR Recipient], in its native form with a corresponding comma file listing containing all available metadata in a delimited format with the corresponding file path to the native file produced for each record.
  14. Please provide the name and title of the person most knowledgeable for the [Health Care Provider Name]’s software/auditing and compliance system. 
  15. What customizations and settings were active at the time when the plaintiff was admitted into the hospital? What privacy-related logging is in place for each such system and/or application? Are privacy log retention settings in place for each such system and/or audit log?

Hospital Data Breached

Hospital Data Breach

Hackers will continue to pummel the sector with targeted attacks.

Have you heard the news about the most recent Chicago, Illinois area hospital data breach?  We’re referring to the article in the Chicago Tribune, By Lisa Schencker on December 31, 2019.  “Personal information of nearly 13,000 people may have been exposed in Sinai Health System data breach” Click here to view the article.

After reading this article many questions came to mind.  Who would hack a hospital system?  Are cyber attacks on hospitals becoming more frequent? Could a foreign hacker be targeting hospitals to conduct cyber warfare?  Could it be a disgruntled employee who maliciously wants to obtain patient electronic medical records (EMR) and target a particular patient?

It has been reported that 70% of hospital data breaches include sensitive demographic or financial information of that could lead to identity theft. The Sinai Health System data breach included 13,000 patients’ names, addresses, birth dates, Social Security numbers, health information or health insurance information were potentially exposed. 

One could easily assume that if a hacker was armed with this information, they could sell patient electronic medical records and financial data to the highest bidder. The potential for patient harm is exponential.

Data Breach Incident Response

What happens next? Computer Forensic Experts are called to initiate a data breach response. Experts start with immediately stopping the breach, accessing the damage, notifying those affected, conducting a security audit. Forensic experts create a recovery plan to prepare for future attacks.  Finally, Forensics experts train employees to protect the data and enforce strong passwords.

Computer Forensic Experts A.K.A. Cyber Security sleuths or electronic detectives are really excellent at detecting where and how the breach occurred and accessing the damage.  In cases of litigation due to a data breach or medical malpractice, Computer Forensics Experts are hired by law firms to serve as expert witnesses to help win the litigation. In addition, many hospitals hire Computer Forensic Experts to assist in auditing their records to prove their side of the case. 

Prepare a Data Breach Incident Response Plan

Looking forward to 2020. Cyber Forensic experts agree the entire sector needs to adjust its security approach to keep pace with hackers. The Department of Health and Services and many states may impose fines on those who are not following security guidelines. It’s vitally important to create a Data Breach Incident Response Plan.

Enigma Forensics are experts in Data Breach Incident Response. To learn more about Enigma Forensics read below.

If you think you have been breached…contact Enigma Forensics.com

Computer Forensics in Medical Malpractice

Importance of Computer Forensics in Medical Malpractice Litigation by revealing patient electronic medical records.

Computer Forensics Wins Litigation

Enigma Forensics CEO & President Lee Neubecker interviews James Meyer a personal injury attorney from Ialongo and Meyer. Computer Forensics uncovers answers to important questions such as; what orders may or may not have been entered as a result of that medical test. In this video, Lee and Jim share some of the changes that have ocurred that impact medical malpractice litigation. Tune in to find out how using computer forensics can make or break a case.

The transcript of the video interview 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.

To Learn More about Computer Forensics and Patient Electronic Medial Records

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