Medical Malpractice - Guide to Electronic Medical Record Discovery

Ten years ago, the courts were satisfied when the defendants stated there were no audit trails and could only produce a limited patient record. Everyone was satisfied with that answer. Now the courts have seen the capabilities of the modern day Electronic Medical Record and have ordered everything from virtual site inspections, in-person inspections aided by the EMR vendor, disclosure of system documentation and forensic audits of systems. Defendants can no longer stand idle or take the position that the data does not exist.

Background on certified Electronic Medical Record (EMR) Systems

In 2011, the Department of Health and Human Services (DHHS) Centers for Medicare and Medicaid Services (CMS) established the Medicare and Medicaid EHR Incentive Program (now known as the Promoting Interoperability Program) to encourage clinicians, eligible hospitals, and CAHs to adopt, implement, upgrade (AIU), and demonstrate meaningful use of Certified Electronic Record Health Technology. Physicians received $67,250 from the Federal Government and Hospitals received at a minimum $1,200,000 as a base payment for implementing a Certified Electronic Medical Record System.

EMR vendors had to go through rigorous testing and evaluation, as well as attest to the Federal Government that they could meet the program requirements. The attestation process was governed by DHHS Office of National Coordinator (ONC) and required that an EMR have transaction level auditing (audit trail) and once the vendor met the requirements their products would be listed on the ONC Certified Health Product List website.

Only a handful of hospitals across the nation serving the Medicare and Medicaid eligible population did not receive funding from the Federal Government.