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The role of e-discovery in medical malpractice cases

Electronic medical records can play an important role in medical malpractice lawsuits.

Medical facilities are encouraged to keep electronic patient records. These records help increase both the efficiency within medical facilities and the quality of care provided to patients by reducing the risk of medical errors.

There are many instances when a medical malpractice lawsuit will benefit from access to these electronic records. The following provides some basic information on this complex area of the law.

Medical records, e-discovery and applicable laws

Lawmakers put in place laws and regulations to help ensure electronic medical records are secure. Three examples include:

  • Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act). This regulation provides financial incentives to encourage health care entities to use electronic health records systems. It guides those who handle electronic health records and mandated compliance with HIPPA regulations. The law also requires health care entities notify patients of any security breach.
  • Health Insurance Portability and Accountability Act (HIPPA). HIPPA provides for the protection of personal information like the patient's name, address, Social Security number and medical information. Health care providers are generally not allowed to provide this information as evidence unless an exception to HIPAA applies. Applicable exceptions can include a court order or subpoena.
  • Code of Federal Regulations (CFR). A number of sections within this law require electronic health information remain confidential.

These laws can apply during medical malpractice trials. Victims of medical malpractice may request electronic record information. This can include a request for an audit trail. In many cases the victim must be able to defend this request. The opposing counsel will likely attempt to dissect this request and convince the judge the evidence requested is irrelevant to the case. As such, it is wise to have an explanation for the relevancy and necessity of the information before making a formal request.

The role of electronic records in a medical malpractice lawsuit

Information held within electronic medical records can serve a number of purposes in a medical malpractice suit. The electronic records may contain evidence to support the claim. An example would include evidence a physician failed to follow-up on the recommendation of a specialist.

It is also important to note that some electronic medical record systems include software that updates the entire record. A change in one portion of the record can apply to the entire medical history for that patient. When reviewing paper documents for a case in the past, these changes were often highlighted with the presence of eraser marks. Technology removes these telltale signs. Due to these advances it is important to inquire whether or not the software used by the medical professional in question contains this capability.

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