Electronic health records are too variable to be reliable or authentic and should be tested before being used in evidentiary proceedings, according to an article in the Ava Maria Law Review, a publication of the Naples-Florida-based Ava Maria School of Law.
The article, "Electronic Health Records Systems: Testing the Limits of Digital Records' Reliability and Trust," notes that the HITECH Act does not address whether EHR information originates from a reliable and trustworthy source, and may need "special treatment" when called upon to support business requirements in legal proceedings.
For instance, since EHRs are used as much for securing payment as for documenting clinical information, they are used for "gaming" the system and creating false representations in the record, according to the article's authors. They also lack standardization, are easy to manipulate and are subject to "auto-spoliation."
Misplaced reliance on inauthentic medical records has implications beyond their admissibility in court. Inaccurate record keeping compromises the medical record and can lead to adverse patient care. Concern also has been increasing regarding the use of EHRs to distort documentation in order to defraud the Medicare and Medicaid programs.
Although EHRs appear to be accurate and complete, due to their "unusual" nature they are rife with errors and alterations, the authors write. As a result, they are not reliable business records management systems and don't meet the requirements of the Federal Rules of Evidence.
"Currently there are no regulatory health information technology requirements or Federal HIT program qualifications for these systems that assure, or reference, their fitness as business or clinical records," the authors write. "While some regulatory reference exists to supportive functions, such as 'audit trails,' at this writing, their use is not required in deployed systems, meaning that evidentiary non-reliability will persist as a challenge to e-Discovery and to all business record-supported or dependent processes in the healthcare industry for a long time."
To learn more:
- read the law review article (.pdf)