Audit Trail Evidence in Medical Malpractice Cases

Most individuals have heard of the HIPAA law, but most equate this law with the requirement that protected health information be kept private and confidential by healthcare providers.  However, as every medical malpractice lawyer knows, the HIPAA law provides far more requirements than simply maintaining the confidentiality of your medical chart.  

For example, the HIPAA law also provides fee restrictions on the costs of copying your medical records.  Many patients have to obtain copies of their medical records for a variety of reasons, such as documenting a personal injury claim or for purposes of investigating a claim for wrongful death, medical negligence, hospital negligence or nursing negligence.  The HIPAA law requires that a hospital provide a copy of the electronic medical records to their patient at a reduced cost and in a timely fashion.  

The HIPAA law also requires that the hospital maintain metadata about the creation of the hospital record.  Metadata is information about how the medical record is created, including the name of each individual who accessed the medical record, the time of their access, and the information that was added to the medical record.  This metadata is called an audit trail.  The HIPAA law specifies that a patient is entitled to an audit trail showing how your electronic medical record was created and by whom. 

An audit trail can provide crucial evidence in a medical negligence lawsuit.  For example, a dispute may arise about what a patient told their doctor or nurse during the course of a hospital visit.  If the doctor or nurse learns that they have made a medical mistake or medical error, they may be motivated to return to the medical record and change the true facts of the case.  Altering the medical record in an effort to avoid liability can give rise to a claim for punitive damages.  Depending on your State’s law, punitive damages may arise pursuant to a claim for spoliation of evidence, obstruction of justice or material alteration or obliteration of the medical record.

The audit trail will provide evidence that a particular healthcare provider, typically a doctor or nurse, accessed the medical record after learning of a medical mistake or medical error and resulting injury or fatality in order to cover up their negligence.  Such evidence is devastating in a medical negligence case and will certainly motivate a self-insured hospital or insurance company to resolve the case.

In addition to the audit trail, evidence of alteration of medical records can be obtained through subpoenaing records from a medical transcription company.  Most major hospital systems require physicians to dictate lengthy portions of the medical record, such as progress notes, consults and operative notes.  This dictation is often sent to a third party medical transcription company for transcribing.  The medical transcription company will typically delete the audio file containing the original recording of the dictation, once the dictation is transcribed into a written note.  This written note is emailed as a draft to the dictating provider in order that the provider can make editorial changes, sign the document and make it a part of the permanent medical record.  This is another opportunity for unscrupulous physicians to alter the medical chart in an effort to cover up their medical mistake or medical error.  When an alteration of the medical record is suspected, a medical malpractice lawyer in Cleveland, OH can subpoena the original dictated note from the medical transcription company and compare that with the final note.  When the original draft is consistent with the patient’s recollection of events or discussions, it becomes powerful evidence that the record was altered in an effort to cover up a medical mistake or medical error.  

 

Thanks to Mishkind & Kulwicki Law Co. for their insight into medical malpractice cases and adult trail evidence.

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