Picture this: your client, who has experienced a medical malpractice event, swears up and down that, right before the event, Dr. So-and-So did XYZ. Her claim is already viable, but, if Dr. So-and-So did XYZ, it becomes an open-and-shut case. To be sure, you go look for confirmation in the medical records.
Problem is, the medical records don’t show that Dr. So-and-So did anything of the XYZ sort.
There’s a saying that goes something like, “if it isn’t written down, it didn’t happen.” On the other hand, your client and her accounting of the event are highly credible.
What do you do? Well, one option is to get the audit trail.
The audit trail is metadata – or data about data – related to a patient’s electronic health record (EHR) that healthcare providers are required to maintain under HIPAA (45 C.F.R. § 164.312) and HITECH (45 C.F.R. § 170.210), among other federal rules. The original purpose of the requirement had nothing to do with preserving evidence of medical malpractice; rather, it was to help control and safeguard access to and integrity of EHRs.
But the audit trail is undeniably useful in unintended ways because of the wealth of information it contains, such as:
- Who accessed the patient’s EHR, and when and where she accessed it;
- What she did with the EHR – g., whether she merely viewed the EHR, or created, edited, or deleted a note in the EHR; and
- How long she accessed the EHR.
The recording of this information is automatic (and thus unavoidable). As one jurist has put it:
Each time a patient’s EHR is opened, regardless of the reason, the audit trail documents this detail. The audit trail cannot be erased, and all events related to the access of a patient’s EHR are permanently documented in the audit trail. Providers cannot hide anything they do with the medical record. No one can escape the audit trail.
It’s easy to see how and why an audit trail could serve as an important piece of evidence in a medical malpractice action. In the scenario above, it could provide evidence of not only Dr. So-and-So’s negligence but also the attempts to cover it up. Talk about a smoking gun.
And even if the audit trail doesn’t reveal a smoking gun, it could provide other less shocking but helpful information. For instance, it could identify potential witnesses or additional defendants who would have otherwise gone undetected. Or it could help your client overcome a motion for judgment notwithstanding the verdict, as well as the appeal of the denial of that motion, and keep her multimillion dollar verdict.
But, as rife with helpful information and opportunities as audit trails are, they can be equally rife with complications affecting their accessibility, accuracy, and reliability, and thus their relevance in litigation. Further, in printed form, they can look like gibberish to the untrained eye.
Fortunately, there’s a simple solution to these problems: the use of an expert trained in understanding and navigating EHR systems and interpreting and explaining audit trails. If you and your client could benefit from such an expert, Global Litigation Consultants has you covered. Contact us today.
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