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Excerpt from
RiskAware for Physicians, 2nd Edition: EHRs, Defensive Medicine, Social Media and More!

You’re a physician who has been served with notice that that you and your hospital are being sued for alleged malpractice during your inpatient treatment of the plaintiff. The papers include a subpoena for copies of the plaintiff’s electronic health record (EHR). You immediately inform the risk management departments of both your professional liability carrier and the hospital. Following the hospital’s written protocols, a formal peer review committee is assigned to review the patient’s relevant electronic health record (EHR) to determine whether there is any merit to the allegations. The legal department of your carrier also reviews the EHR. After both departments have completed their reviews, the plaintiff’s attorney is provided with complete copies of the EHR.

During the discovery phase of the suit, the plaintiff’s attorney finds a discrepancy between the EHR copy provided in response to the subpoena and an earlier copy obtained by the plaintiff prior to filing suit. Alleging a potential alteration of the medical record—which, if true, would virtually eviscerate your defense—the plaintiff’s attorney next subpoenas the EHR metadata that automatically tracks the activities of each and every party who accesses the record.

The attorney representing you moves to block discovery of the metadata generated by your carrier’s review of the EHR on the basis that such activities in the preparation of a litigant’s case are subject to attorney-client privilege. The hospital also moves to block discovery of the metadata generated during peer review, asserting legal privilege under the Health Care Quality Improvement Act (HCQIA). What is the likely outcome of these motions to block discovery, and why?

  1. Both motions will be denied because such metadata are routinely generated by the EHR program independently of the purpose of the individual accessing the record, and are unlikely to provide useful information in the absence of fraud.
  2. Your own motion for attorney-client privilege will be granted but the hospital’s motion will not because routine data not generated specifically for the purpose of peer review is not protected by the HCQIA.
  3. The hospital’s motion will be granted because all peer review activities are protected by the HCQIA, but your motion will be denied because routine data are not protected by attorney-client privileged.
  4. Both motions will be granted because both types of data are legally privileged.

Did you immediately recognize A as the correct answer? Because that’s exactly how a federal judge ruled in a recent medical malpractice case asking involving those same motions to bar discovery.[1] This is important to you because any and all entries into any medical record are considered by the courts to be permanent legal documents, and any later attempts to amend or correct earlier entries must be clearly labeled and dated as such, especially after you have already been notified that a legal action has been filed or is pending. Altering an entry to make it appear that the changes were part of the original record would be considered an act of fraud.

Note that the judge ruled that metadata are exempt from both attorney-client and HCQIA privileges on the assumption that, in the absence of fraud, the value of metadata to the plaintiff would be negligible, providing no more information than who accessed the EHR and when. Implicit within this assumption is the notion that, if the metadata did reveal any alterations or other fraudulent conduct, this too would be discoverable. As such, any attempts to “correct” errors or omissions discovered during peer or attorney reviews, no matter how innocent the intentions of those involved, would be revealed to the plaintiff and used to discredit the entire medical record as well as your professional integrity. Such a discovery would likely render your entire defense untenable, could incite an outraged jury to punish you with a plaintiff’s award far in excess of your insurance limits, and could lead to discipline against your license and even criminal charges.

In the actual case under discussion, fortunately, no such alteration was found and the jury rendered a verdict in favor of the defendants.