Analysis: EHRs Unreliable in Court Without Further Verification Steps

October 8, 2014 in News

Data contained in electronic health records should not be accepted as evidence in legal proceedings unless additional steps are taken verify the information’s reliability and authenticity, according to an analysis published in the Ave Maria Law Review, Medscape reports (Terry, Medscape, 10/3).

Background

While EHRs have grown in popularity, in large part because of funding and incentives provided through the 2009 economic stimulus package, the authors noted that such records could pose unique legal challenges (Drury et al., Ave Maria Law Review, Summer 2014).

Under the 2009 economic stimulus package, health care providers who demonstrate meaningful use of certified EHR systems can qualify for Medicaid and Medicare incentive payments.

Analysis Details

The authors provided several reasons why EHRs might not be reliable in legal cases (Medscape, 10/3). For example, they wrote that EHRs:

  • Allow providers to make copies of notes in different patients’ EHRs or for different patient visits, raising accuracy concerns (Ave Maria Law Review, Summer 2014);
  • Are not subject to systematic audits or other means of ensuring their reliability and credibility (Rowe, Government Health IT, 10/6);
  • Can remain pending or open for extended periods of time, allowing physicians to potentially change data several times prior to closing and signing the record;
  • Could be vulnerable to unintentional staff errors (Medscape, 10/3); and
  • Help to determine reimbursement rates, and therefore could give providers a financial incentives to change the records (Government Health IT, 10/6).

The authors wrote that unverified EHR data should be essentially considered “hearsay” in court.

Study co-author Reed Gelzer said that EHRs could be deemed reliable for malpractice cases if:

  • A health care organization’s IT manager testified to an EHR’s authenticity and reliability; and
  • Additional questions about issues — such as the practice of cloning of notes is, the rules for copying notes and EHR audit capabilities — are answered.

According to Medscape, it is not clear if there are any malpractices cases in which an EHR has been disqualified as evidence (Medscape, 10/3).

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