Customized Interrogatories and Requests for Production for EHR Issues.
Relevant associations, Internet resources and journal articles for EHR standards.
Specific Instructions Certified Legal Nurse Consultants Should Provide to Attorney-Clients for Obtaining the EHR
Identify the EHR platform and system in use (e.g., Epic). The CLNC consultant’s familiarity with an EHR system enables quicker navigation through electronic medical records. Understanding how medical data is entered, stored and presented within an EHR helps the Certified Legal Nurse Consultant to efficiently and accurately interpret the medical records. Knowing how the EHR systems track entries, revisions and deletions helps the CLNC consultant to recognize signs of tampering.
Dale Barnes, RN, MSN, PHN, CLNC adds, “I am familiar with multiple systems, but if there is a system I’m not familiar with, I discuss it with a CLNC consultant who knows that system well. This helps me avoid wasting time trying to figure out if everything has been provided before beginning my review.”
Understanding the platform enables the Certified Legal Nurse Consultant to address the broader technology framework or infrastructure on which multiple applications or modules can operate. A platform provides the foundation for customization, integration, interoperability and extension of functionality. For example, an EHR platform allows integration of third-party applications, clinical decision support tools and analytics.
Specifically request the complete set of medical records. The Certified Legal Nurse Consultant educates the attorney regarding what comprises a complete medical record. Suzanne E. Arragg, BSN, RN, CDONA/LTC, CLNC describes, “I provide an itemized table of contents tailored to the specific EHR. This document serves as a reference for the attorney when drafting a formal request for records. I explain that following this guide increases the likelihood of obtaining a complete export from the native EHR system. I also explain the differences between the front-end data (what is seen by users during charting) and the back-end data (metadata not visible in standard reports). This includes system-generated timestamps, access logs and revision histories that form part of the legal health record.”
Michelle Neal, RN, BSN, CLNC shares, “I include specific instructions for requesting the medical records based on the type of case and the specific EHR system in use. For example, in a medical malpractice case involving a pressure injury, I advise requesting specific documents labeled within the EHR system, such as Braden Scale, ADL Flowsheets, Nursing Skin Integrity Assessments, Wound Care Consultations, etc.”
Strategies Unique to Analyzing the EHR
Use technology such as Adobe Acrobat Pro, Optimal Character Recognition (OCR) and Bates Numbering for digital bookmarking, keyword searches and efficient navigation across hundreds or thousands of pages.
Michelle Neal, RN, BSN, CLNC affirms, “A valuable strategy is converting the EHR PDFs using Adobe Acrobat’s OCR technology. This allows full-text searching capability when looking for specific keywords for review and analysis of the records. While large volumes of records may take time to process, selectively OCRing portions of the record can still provide a tremendous advantage during your review.”
Confirm you have received a complete medical record. If the records are incomplete, provide the attorney with a specific list of records that are outstanding.
Employ a systematic and organized approach to reviewing the medical records.
Focus on the essence of the case.
Focusing on the essence of the case helps you to focus and streamline your review and analysis. For example, in a medical malpractice case involving a surgical complication, focusing on the postop nursing notes may be more relevant than focusing on the operative report and anesthesia report.
Michelle Neal, RN, BSN, CLNC adds, “Scan the relevant records first. Records are organized into categories such as nursing narrative notes, nursing flowsheets, MAR/TAR, progress records, etc. For example, in a fall case, I scan a majority of the records to confirm when and where the fall occurred. I go straight to nursing notes or change of condition notes. Then, I work my way backwards into the records in order to determine merit by evaluating fall risks, careplans, interventions, patient overall condition, etc. This structured approach eliminates the process of reviewing thousands of irrelevant pages of records.”
Focus on where the action happened. Records are arranged chronologically. You create efficiencies in your review of the medical record by focusing on the timeframes relevant to the incident.
Access the navigation or Table of Contents. You can quickly pinpoint the relevant documentation (e.g., discharge summary).
Search the medical records for relevant keywords, such as pressure injury. This helps to ensure you don’t miss records that are relevant to the case issues.
Identify recurring clinical findings and documentation inconsistencies. For example, documentation of altered level of consciousness by one provider and not another may be relevant to the outcome of the case. Michelle Neal, RN, BSN, CLNC recommends, “To assess for tampering, look for changes in patterns or inconsistencies with documentation, multiple late entries or addendums around the date of incident (DOI). Analyze the chronological timeline of events by reviewing the audit trail. Look for gaps in documentation preceding the DOI and for documentation that appears too perfect and isn’t consistent with the patient’s condition or alleged injuries. Tampering detection requires an investigative mindset of piecing together missing, altered or inconsistent documentation. Rely on your clinical judgement and critical thinking to identify when something doesn’t make sense. If things aren’t matching up, trust your instincts and investigate further.”
Assess patterns in the documentation. For example, you identify the failure to turn a patient on the part of numerous providers. Assess patterns for staffing issues such as short staffing throughout a patient’s hospitalization.
Analyze metadata and the audit trail for tampering suspicions when applicable. Metadata includes date and time stamp, user identification, revision history, etc. Audit trails are a specialized type of metadata focused on detailed tracking of user actions within the EHR. Metadata and audit trail analysis is relevant for identifying edits, late entries, deletions, etc., when suspicious of tampering.
Yolanda Anderson, RN, BSN, CEN, CLNC suggests, “Multiple people may be charting about the same information. With the EHR, you can track whether a certain entry is an attempt to mislead that an event took place at a different time.”
Suzanne E. Arragg, BSN, RN, CDONA/LTC, CLNC adds “Be sure to request audit trails to analyze the user access and revision history. The logs will reveal the date and time that sections of the EHR were accessed and what portions were changed. Sometimes changes are made weeks, months or even years after the patient’s discharge. This suggests revisions were made in response to regulatory non-compliance, billing inquiries/insurance submissions resulting in State or Federal audits or because of a filed lawsuit. There may also be multiple entries by a particular user that consecutively repeat over an unusual period. For example, if a user has documented for 7 days straight, interrogatories/inquiries should be made as to staffing levels or whether the user was directed to make late entries into the EHR.”
Interrogatories and Requests for Production
Interrogatories Directed to the Defense
Please provide the type of EHR documentation system that was in use at (Facility) __________ from (Date) __________ to (Date) __________.
Please identify the person most knowledgeable about (Defendant Corporation) __________ regarding the existence of the electronic creation, duplication and/or storage of
(Plaintiff) __________’s electronic health records, including but not limited to medical chart entries, nurses notes, progress notes, chart notes, physician orders, ADL charting, therapy records, MDS records, medical and psychosocial records, lab tests, X rays, reports, correspondence, office records, office charts, billing and accounting records, consultation records, contracts, written admission agreements and any other information created or stored for a patient using any computer program or software, including but not limited to (Software Program) __________ created or maintained by (Facility) __________ in their native electronic form or format with any metadata included from
(Date) __________ to present.
Please provide a detailed explanation of the data integrity controls within the electronic health record system, in place at (Facility) __________, including descriptions of how data accuracy, reliability, and security are maintained and audit trail mechanisms for tracking user interactions and modifications to patient records.
Please take notice of (Plaintiff) __________’s demand for inspection, examination and copying of (Defendant) __________’s electronic medical record, including but not limited to:
The (Software) __________ system, its reports, logs, modules, alerts, security reports, audit logs, audit trail data, audit log data, any and all definitional logs and user manuals associated with the system that are necessary to understand the audit trail/audit data for (Plaintiff) __________ that are within (Defendant) __________’s possession, custody or control from (Date) __________ to present.
Full user access at the highest level to ensure complete access to (Plaintiff) __________’s electronic health data and to prevent disabling or limiting of (Plaintiff) __________’s access to any part of the (Software) __________ program that might in any way deny or restrict
(Plaintiff) __________’s ability to access any and all reports, logs, systems, modules, user guides, or help features from (Date) __________ to present.
Please identify and provide dates of employment for each licensed nurse assigned to
(Plaintiff) __________ at (Facility) __________ from (Date) __________ to (Date) __________.
Please identify and provide dates of employment for each Director of Nursing of
(Facility) __________ from (Date) __________ to (Date) __________.
Please identify and provide dates of employment for each Health Information Manager of
(Facility) __________ from (Date__________ to (Date__________.
Please identify and provide dates of employment for (Facility) __________’s Regional and/or Corporate Information Technology Representative from (Date) __________ to (Date) __________.
Please identify and provide dates of employment for (Facility) __________’s Regional and/or Corporate Clinical Educator from (Date) __________ to (Date) __________.
Please identify and provide dates of employment for each Staff Education Director of
(Facility) __________ from (Date) __________ to (Date) __________.
Requests for Production Directed to the Defense
Please provide all documents and logs related to (Facility) __________’s efforts to comply with regulations and laws from (Date) __________ to (Date) __________ , including copies of compliance training materials, electronic documents and any follow-ups regarding compliance issues, including employee certifications related to training and other compliance initiatives.
Please provide all training programs and training materials, including but not limited to training manuals, in-service materials and training videos regarding the software or computer program used to create or access any electronic health records regarding (Plaintiff) __________ from
(Date) __________ to the present.
Please provide all written policies and procedures of (Facility) __________ pertaining to the creation or maintenance of electronic health records regarding (Plaintiff) __________.
Please provide all (Corporation d.b.a. Facility) __________ compliance quality procedures and practices intended to guide (Facility) __________ and the conduct of its employees and agents in daily operations from (Date) __________ to (Date) __________.
Please provide (Facility) __________’s protocols for accessing and exporting electronic health records, including any permissions, restrictions or user roles required.
Please provide all policies, procedures, or protocols of (Facility) __________ regarding the editing or deletion of electronic health records, as well as the identities of individuals authorized to make such changes.
Please provide all policies and procedures of (Facility) __________ regarding the preservation of metadata within (Facility) __________’s EHR system.
Please provide all agreements and contracts with any third party regarding the maintenance or access to any electronic health records related to (Plaintiff) _________ from (Date) __________ to present.
Please provide all Protected Health Information (PHI) logs, documents, notices and correspondence to or received from any regulatory body related to (Facility) __________’s violation of HIPAA §164.402 Breach Notification Rule concerning (Plaintiff) __________’s electronic health records from (Date) __________ to present.
Please provide all Protected Health Information (PHI) logs, documents, notices and correspondence to or received from any regulatory body related to (Facility) __________’s violation of HIPAA §164.402 Breach Notification Rule concerning any electronic health records for all patients admitted to (Facility) __________ from (Date) __________ to (Date) __________.
Please provide all records of all modifications and deletions of any electronically stored medical information regarding (Plaintiff) __________, including but not limited to all information required to be recorded and preserved pursuant to HIPAA Security Rule from (Date) __________ to present.
Resources
Associations and Organizations
American Health Information Management Association (AHIMA). ahima.org
Baumann L.A., et al. The Impact of Electronic Health Record Systems on Clinical Documentation Times: A Systematic Review. Health Policy. August 2018; 122(8): 827-836. doi: 10.1016/j.healthpol.2018.05.014.
Cheng C.G., et al. Restricted Use of Copy and Paste in Electronic Health Records Potentially Improves Healthcare Quality. Medicine. (Baltimore). January 2022; 101(4): e28644. doi: 10.1097/MD.0000000000028644.
Floyd P.T., et. al. Defining the Medical Record: Relationships of the Legal Medical Record, the Designated Record Set and the Electronic Health Record. Perspectives in Health Information Management. October 2021; 18(4): 1h. eCollection 2021 Fall.
Tsou A.Y., et. al. Safe Practices for Copy and Paste in the EHR. Systematic Review, Recommendations and Novel Model for Health IT Collaboration. Applied Clinical Informatics. January 2017; 8:(1): 12-34. doi: 10.4338/ACI-2016-09-R-0150.
Wang M.D., et. al. Characterizing the Source of Text in Electronic Health Record Progress Notes. JAMA Internal Medicine. August 2017; 177(8): 1212-1213. doi:10.1001/jamainternmed.2017.1548.
Watson C.H., et. al. Methods and Lessons Learned from a Current State Workflow Assessment Following Transition to a New Electronic Health Record System. Perspectives in Health Information Management. April 2023; 20(2): 1c. eCollection 2023 Spring.
Thanks to Yolanda Anderson, RN, BSN, CEN, CLNC, Suzanne E. Arragg, BSN, RN, CDONA/LTC, CLNC, Dale Barnes, RN, MSN, PHN, CLNC, Shequita Moore, MSN, RN, LNFA, CLNC, Michelle Neal, RN, BSN, CLNC, Liltina T. Prendergast, DNP, MSN-LHCS, BSBM, SWOC, RN-C, CLNC and Lori Sprenger, PhD, RN, CLNC for sharing their strategies for analyzing the EHR.
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*The opinions and statements made by Vickie Milazzo, the founder of Medical-Legal Consulting Institute, Inc. are based on her experiences and expertise, should not be applied beyond the specific context provided, and do not guaranty or project actual results. Vickie Milazzo is no longer involved in the operations or management of the business, but is involved as an independent education consultant.
