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Legal HIMformation
(November 2009)

On October 30, 2009, the Arizona Supreme Court held that metadata is part of any public record (as defined by state public records laws) that is maintained in an electronic format, and is therefore subject to disclosure under such laws.  Lake v. City of Phoenix, Case CV-09-0036-PR.  The court stated that Arizona's public records laws require that the requestor "be allowed to review a copy of the 'real record'," and that "it would be illogical, and contrary to the policy of openness underlying the public records laws, to conclude that public entities can withhold information embedded in an electronic document, such as the date of creation, while they would be required to produce the same information if it were written manually on a paper public record."  This holding causes us to wonder aloud about how many health care providers define and classify portions of electronic health record system data as part of the "official patient record."  To borrow the words of the Arizona Supreme Court, what is the "real record" of care?

Electronic record systems can hide the "real record" in many ways.  For example, if a draft radiology interpretation is in the record for clinicians to view for some time, and then the signed version of the record (perhaps changed in a significant way) replaces that draft so that nobody can tell the draft was there (i.e., the problem of versioning in metadata), have we unwittingly created an environment for malpractice?  Suppose further that a patient is admitted with no known allergies, but it is later discovered that he is allergic to a drug.  If your electronic health record system populates that drug allergy to all places in the record - including the admission history and physical - hasn't the system made the prescribing practitioner look incompetent?  Metadata would show that this entry was made after the patient was admitted, but chances are that the jury won't ever see that metadata.  In fact, most metadata is never viewable by the clinician and, in a paper environment, would not be included in the official patient record.  However, date/time stamps, electronic signatures, versions of records, and similar pieces of information would be viewable by the clinician and are key parts of the official patient record.  It is these types of metadata that the Arizona Supreme Court called part of the "real record."

When you transition a paper process to an electronic process, you should be able to replicate the "story of care" electronically just as you could with an old-fashioned paper chart - in some type of chronological sequence, with changes to drafts being viewable, with historical records not subject to change by artificial intelligence processes, with late entries clearly marked, and with the record the clinician used to make care decisions available for review by other providers, by lawyers, and by juries.  If you can't, it's possible that the output of your electronic health record system really isn't your official patient record.  It may be hidden somewhere in the system, like metadata, but you aren't producing the "real record" for review.

Why is this a problem? Well, Rule 1002 of the Federal Rules of Evidence (the "Best Evidence" rule) requires that, in order to be admissible, a document must be an original or a "duplicate."  If your EHR can't reproduce what the clinician saw when he entered an order, is the paper output from the system REALLY a "duplicate"?  Is a duplicate inclusive of metadata and other information the clinician never saw or never could see?  In other words, will a substandard job of defining your official patient record limit the ability of your record to be admitted into evidence to help you at trial?

However you get there, your official patient record should contain the data you need both to care for your patients and to explain how you rendered that care - and not simply what the electronic system can produce (or reproduce) for you.  You want - and your patients deserve - the "real record."  What providers have to acknowledge is, in many instances, that this includes metadata.

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