The Fundamental Importance of Medical Records to Achieving Justice

by Hon. Ralph Artigliere

This blog is the first in a series, which will hopefully initiate and sustain a dialogue towards solutions to the many problems that plague the keeping, storing, and efficient access to patient Electronic Health Records (EHR). Blogs appearing here will be generated by the authors of the article, Diagnosing and Treating Legal Ailments of the Electronic Health Record: Toward an Efficient and Trustworthy Process for Information Discovery and Release, published in the Sedona Conference Journal, Volume 18 (2017)* as well as guest authors and experts with a special knowledge or interest in EHR systems. These include law and medical practitioners, EHR and eDiscovery consultants, and judges with specific perspectives and information pertinent to this rapidly evolving subject area. Readers are encouraged to weigh in on the content of this blog and the aforementioned article as well as other issues encountered with EHR in the medical and legal fields by leaving comments below. Cautionary Note: Nothing contained in this blog should be construed as, or considered to be, legal advice. If you require legal assistance, contact an attorney in your jurisdiction. *This Sedona Conference Journal article is available at no cost at: https://s3.amazonaws.com/IGG/publications/EHR.TSC.Vol18.rev.pdf

Patient medical records are among the most universally important documents in our society according to Ken Withers of The Sedona Conference. (Withers, K., A Prescription for Electronic Health Record Problems: Four Remedies Borne of Legal Necessity, Bloomberg Law Health IT Law & Industry Report [Sep. 4, 2017]). The intersection of law and medicine involves issues of medical and legal ethics, the patient’s right to know, and reaching the truth in legal matters. Health care providers must now keep a complete record of their reasonable care digitally in the form of Electronic Health Records (EHR). Providers must also safeguard privacy for the patient while allowing a patient's access to the record, if requested, and access by authorized persons or entities with a legitimate need for information in the records. Complicating this intriguing area is the fact that the government mandate for health care providers to exclusively employ EHR fails to expressly require a standard of recordkeeping that ensures that other providers treating a patient, the patient herself, or any other authorized stakeholders with a legitimate need to know, will have ready access to universally comprehensible records.

Medical-legal needs are at the forefront of the question of access to EHR. The importance of medical data and information to justice cannot be understated. Justice relies on complete, accurate, clear, and genuine records, fully capable of ready authentication. Technology now has the capacity to provide the means of all those objectives while also ensuring the requisite legally mandated security and privacy of patient information. For that reason, the federal mandate for EHR anticipated and expected facility in a number of key areas. Given the current and continuing state of diversity in EHR compliance, key areas include auditing support and interoperability support, both critical for trusted record sharing from one provider to another. See, e.g., ASTM E2017-99(2010) Standard Guide for Amendments to Health Information, ASTM E2147-01, Standard Specification for Audit and Disclosure Logs for Use in Health Information Systems (Audit Standards) incorporated into HITECH 2009 by reference in 45 C.F.R. 170.299, and applicable profiles derived from HL7 EHR System Functional Model, Release 2; see also LoMurro, Jon, "Please Provide the Entire Electronic Medical Record" ExpressO (2014) available here. Due to lack of enforcement of specifications, including statutory directives among these requirements and lack of mandated uniformity, the current state of EHR fails to deliver on many of its promising capabilities. Instead, the road to ready access to important electronic information within and without the health care system has met with complications and roadblocks, some justified or at least understandable, and others that should be addressed and surmounted with all due haste. Compounding the problem is the fact that the legal and medical arenas have no authoritative and broadly enforceable agreement on a common or even typical description of what patient care information comprises. Likewise there is no agreement on what information must be recorded and contained as part of a patient record.

Patient access to their own health care information is a hot topic nationally. Some agencies states, and even some health care providers themselves assert a "patient right to access" their health care records. My home state of Florida is proposing a constitutional amendment based on a patient's "right to know" in response to legislative efforts to provide statutory protection to adverse medical incident records. Meanwhile, the battle over scope of access to such information plays out in the courts as this blog is being written. (See Edwards v. Thomas, 2017 Fla. LEXIS 2136, 229 So. 3d 277, 42 Fla. L. Weekly S 870 [Fla. 2017]) The broadening of available "medical records" to include reporting of adverse medical incidents as set forth in the Florida Constitution and affirmed by the Florida Supreme Court in the Edwards case is likely to be submitted for review by the U.S. Supreme Court. But the question of access to health care records is much broader than the discrete issue of a patient’s own right to access adverse medical information, which is just one skirmish in the ongoing struggle of determining the scope of information that is relevant and discoverable by patients, patient representatives, and other stakeholders with a lawful interest in information generated in the course of patient care, regardless of whether the information is intended to be part of what may traditionally have been considered the patient’s “chart” or “official health care record.”

The aforementioned recurring issue in determining access to records for medical-legal purposes is “what is the medical record?” The advent of widespread digital record keeping and the overlay of requirements and shaping of components of EHR by the government, health care providers, vendors, and other stakeholders creates a diverse and complex body of information inside and outside the traditionally designated patient medical record. Legally required production  upon lawful request by the patient (or others) and discoverability of information once a case is filed are determined case by case by, inter alia,  relevancy, availability, proportionality, need, and sometimes by the promise of patients’ rights or the agreement between patient and provider. What the provider deems to be the record is subservient to legal requirements and factors in a given case.

Impacting consideration of availability and proportionality upon lawful request is the framework for accessing and retrieving information supplied by the vendor, hardware, and software. In many cases, “reports” of information requested by the health care providers are quite different in scope and appearance than the array of information input into the system during and following care. Form and content of reports may also vary from system to system within and without a given organization. Such variance, together with distinctions in terminology and process between the legal and medical arenas and from one provider to another, is a major challenge for requesting and producing parties when preparing and responding to a request for information. Health care providers may not understand what is needed and requested. Even if they do understand it, limitations or default reports in the provider's software may produce results that are neither adequate nor responsive.

In a given case, issues may include entitlement (relevancy and discoverability), scope of information, burden on the producing party, and proportionality. In the long run, and in some individual cases, courts may have scant patience on the issue of burden if relevant information is kept by providers and digitally present but not readily available in standard reports. Extracting and producing the information and attendant costs are likely to be the responsibility of the producing party if the information is of a type that would be reasonably expected to be needed by the requesting party. In many cases, the requesting party may be able to argue that, if the information was not considered important or relevant, why was it created in the first place?

A corollary issue is the lack of knowledge or understanding on the part of the requesting party of what data is kept and the challenges (and costs) of producing certain information. Overbroad requests may invade privacy interests of the patient and unnecessarily burden the provider, especially when the provider is not a party to the case at hand. Experts and counsel advising requesting parties have an obligation to understand enough about EHR and the information needed for a given case so that they can articulate, or at least discuss and negotiate, a narrowly drawn and precise request that may be understood by the producing party. Both sides should work with each other to understand each other’s needs and entitlements in order to efficiently and economically accomplish ESI production. A requesting party’s lack of understanding of what is relevant and needed in a given case, what may be available, and where and from whom the information may be most economically obtained can be a significant obstacle to effective, economical, and efficient discovery of the information. By the same token, the requesting party may be at a disadvantage borne by legitimate lack of knowledge of what is available in the hands of the producing party. But this dilemma is age-old and not exclusive to digital records, and communication (meet and confer) and/or ancillary discovery are the prescribed remedies to resolve such problems.

Like other cases in the adversary process, the medical legal context can create issues of lack of trust which may be exacerbated by the parties’ failure to effectively understand each other. Failure to produce information upon earlier requests that later becomes available during an iterative process or from a third party may be rightly or wrongly attributed to sinister motive or a desire to hide the information. Further, failing to timely produce a full complement of information may result in impeachment opportunities in court that may or may not have a valid underlying basis. The appearance of hiding information can do damage to credibility regardless of explanation or reasons.

Thus, effective communication and understanding is important to both requesting and producing parties. But this takes work. Simply having health care providers unilaterally determine the scope of a response to a request for patient records is not adequate. Nor does the requesting party have the right to unilaterally determine the scope of a valid production. Adding to the mix are the issues of achieving proportionality and avoiding unwieldiness while effecting full production. Patients, health care providers, and all valid stakeholders are entitled to economic access to such information.

Resolving this issue of valid access is fundamental to justice and patient safety and should be a priority for all stakeholders in order to achieve justice in the legal, medical, and governmental fields. Solutions for these issues begin with identifying the problem followed by a dialogue on how to resolve it. This blog and our underlying article mentioned above endeavor to initiate such a dialogue.

At the intersection of medical and legal systems, there is a great deal at stake in the quest for access to information, including the reliance on authentic, complete, and accurate medical records. Trustworthiness is essential to resolving issues on just compensation, prosecution of and defense against medical malpractice, insurance and government health care coverage, and, in criminal cases, evidence of guilt or innocence beyond a reasonable doubt. In civil, criminal, and family law cases, medical records are often the backbone of the determination of a just result for one or both sides. Patients, their attorneys, expert witnesses, and judges rely on records. To do so, they must understand them and trust them. While one may argue that the most important role for medical records is the delivery and the continuity of good care in treating the patient, the underlying accessibility, trustworthiness and completeness of a medical record as required in the legal system serves the purpose of delivery of good care as well. Quality EHR is not just a question of what goes in a record. It is dependent on the recording, storage, accessibility, and utility of the record once it is made.