Legal Issues of the Electronic Medical Record

When medical practices change over from paper to electronic medical records (EMR), gavel-and-scale.jpgsteps must be taken to ensure that the records remain legally sound. The change to electronic medical records brings up some issues with compliance, privacy, and security. Below you will find some important considerations to make when switching your practice over to EMR.

When writing an exam on a piece of paper and signing it, you create a legal document. You are most likely familiar with the problems that can result from changes to medical records, and the importance of good documentation. The Healthcare Information and Management Systems Society (HIMSS) asserts that electronic medical records must be stored legally. Otherwise, these records can be challenged as hearsay and deemed invalid.

This is important, because when electronic medical records do not meet the legal requirements, a payor can sometimes deny a claim. Also, you could create the risk of an adverse outcome in litigation. In addition to being sure your electronic records aren’t altered, you must also be able to demonstrate the procedures which are used to ensure this.

How, then, can you make sure your electronic records can’t be altered? The ideal system lets users make updates and correct errors while keeping the record’s legal integrity intact. Ask yourself the following questions:

* Does the system keep a record of who is accessing and writing to the record? You wouldn’t want your name appearing as the author of another user’s entry.

* Does it contain a security protocol which is strict but not too time-consuming? Features could include an automatic time-out after a period of inactivity, and periodic changes to the alphanumeric passwords.

* Does the system prevent access to certain critical features? For example, an employee working the front desk shouldn’t be able to edit a patient’s clinical findings.

* Does it use a secure ‘lock-out’ feature? Perhaps you want the doctors to be able to make changes at the end of the day, but after a certain amount of time has passed the record should lock. This sort of feature helps protect you by preventing unauthorized changes.

* Does the system write time stamps on all entries, to show an audit trail? For example, the system could write an unalterable draft of each event and entry.

By paying attention to these important considerations, you’ll be on your way to ensuring your electronic medical records system is legal and defensible.

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About Peter Polack

Peter J Polack is founder of emedikon, a medical practice management consulting firm and president of protodrone, a software development company specializing in medical practice applications. A technology columnist for Ophthalmology Management Magazine, he is a managing partner for a large multi-specialty ophthalmology practice in Florida.

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  1. good article. All HIMMS and EMR should create legally valid documents when required in the court of Law.

  2. Nice article.
    An important consideration in ensuring your electronic medical records system is legal and defensible, is to make sure that the information can be authenticated by a trusted third party.
    Why a trusted third party? You need to be able to illustrate the information’s integrity. If the electronic data is used in court the evidence rules still apply. Just like with paper records. (See Federal Rules of Civil Procedures even though these are federal rules, most states apply them as well.) The digital information could be subject to prove it’s authenticity. (Rule 109 of the Federal Rules of Evidence.) An example of this is Vee Vinhnee v. Amex -CA 2005. In this case, American Express claimed Vinhnee failed to pay credit card debts and took action to recover the money. After a trial that occurred in the absence of the defendant, the trial judge determined that American Express failed to authenticate certain records in digital format. American Express appealed the verdict, and the decision of the trial judge was affirmed. Judge Christopher Klein remarked,
    ” …the focus is not on the circumstances of the creation of the record, but rather the circumstances of the preservation of the record during the time it is in the file so as to assure that the document being proffered is the same as the document that originally was created.”
    It is best to be able to show the: WHO created/edited the file, WHAT the file is and WHEN was it created/edited.
    (Please got to: http://www.Tru-DataIntegrity.com for more information.)
    I look forward to seeing more on this interesting topic.

  3. Eric, thanks again for a concise explanation of another one of many legal issues regarding electronic medical records. This illustrates the reason why, although many EMR software systems may allow a physician to ‘unlock’ a record and make changes, such changes may cast doubt on the integrity of the patient record. Another example would be a physician allowing medical assistants to log in or out using the physician’s password for the sake of expeditiousness.

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