Challenges and Opportunities: Electronic Records in Information Discovery

Understanding risk considerations around the Electronic Record, and actions to take to help support the discovery process

Electronic Records in healthcare have brought many positive changes for providers as well as patients and their support networks. With these innovations, also come certain considerations, especially when a record is involved in a legal discovery.  

To get a better picture, Trevor Hall, HIROC’s Vice President of Healthcare Safety and Risk Management, talks with Borden Ladner Gervais (BLG) Partners, Daniel Girlando and Anna Marrison. 

They chat about risk considerations that can come from the degree of variation in how health information is documented, preserved and stored. A lack of industry standard in how Electronic Records are designed and organized, can also lead to completeness challenges in the information discovery process. 

Daniel and Anna offer guidance on what Subscribers can do to ensure complete and usable Electronic Records.

After reading this interview, HIROC encourages Subscribers to reach out to [email protected] if you have learnings to share as to how your team is approaching the information discovery process. 

In medico-legal claims in Canada, what does information discovery mean in terms of health record production?

In Canada, parties to a lawsuit have, as part of the information discovery process, obligations to disclose or produce relevant records in their possession and control to the other parties. In the context of medico-legal claims, the key and often the largest component of information discovery relates to health records. 

Health records can be physical (e.g., paper) or electronic, or a combination of the two. Electronic Medical Records tend to be provider specific (e.g., single healthcare provider), while Electronic Health Records include multiple providers. 

For this discussion on information discovery in medico-legal claims, both EMR and EHR have similar positions and will be referred to as Electronic Records. 

Are there risk considerations in the preservation and production of Electronic Records in Canada?

Yes. Electronic Records aim to have near real-time health information available to clinicians to better guide and coordinate clinical decision making. The dynamic nature of Electronic Records and all the information they contain is difficult to capture in the PDF copy of the “legal chart” that is created to comply with disclosure obligations as part of the information discovery process. In other cases, the information is captured but presented in a completely different format that is difficult to read and use. 

In addition, there is a high degree of variation in how health information is documented, preserved, and stored in Electronic Records, because of variations in vendor designs, customization by health organizations, and the primary Electronic Record’s interaction with other electronic systems within the organization (e.g., labs and diagnostic imaging systems). 

This lack of industry standard means that omissions to include certain categories of information in the “legal chart” can be more difficult to identify and correct. Currently, there are usability and completeness challenges with the disclosure and production of Electronic Records as part of the information discovery process. 

Are we seeing challenges being brought about the accuracy of the Electronic Record? What impact does this have on legal proceedings?

Yes. First, it is generally taking adjusters, law clerks and lawyers, together with risk, health records and healthcare staff, more time to ensure that information discovery is complete. Second, the late disclosure of documents may impact the course of litigation, for example, by either confirming or undermining a party’s position in the lawsuit, or delaying steps in the lawsuit. Our goal is generally to obtain as much information as possible early in the litigation to properly assess risk and to be able to produce an accurate and complete record. Third, the production of incomplete Electronic Records can in some cases give rise to allegations of spoliation or concealment of evidence. Finally, challenges in complying with the obligation to disclose or produce complete Electronic Records during the litigation can create unhelpful or negative perceptions of the organization that could influence a judge or jury. 

In a recent Ontario Superior Court decision, challenges about complete disclosure resulted in the trial judge making a finding of direct liability against a Subscriber. While that finding was overturned on appeal, that case highlights the risks that arise with incomplete production of Electronic Records as part of the information discovery process. 

What actions can we take to support in the information discovery process?

Ensuring complete and usable information, whether physical or electronic, with a risk or clinical manager will support the discovery process. Understanding what health information is available within your organization’s main and ancillary Electronic Record systems to produce a complete record is critical. A data mapping exercise can be a useful tool to improve that understanding. 

Also important is working with your health records, risk, adjuster, and legal teams to ensure a standardized information production process. The use of a checklist can be a useful tool in this standardization process. HIROC and BLG are in the process developing an updated standardized checklist for Subscribers. We welcome feedback on past challenges and learnings (e.g., lost Electronic Records fields within archived records during system upgrades) to share with Subscribers.

Thank you, Daniel and Anna for giving HIROC's Subscribers a better understanding of some of the risk considerations around Electronic Records. 

In view of this emerging risk, HIROC is interested in hearing from our Subscribers to learn more about how you may be approaching the information discovery process (preservation and production). We welcome your learnings from past challenges so that we can share with fellow Subscribers. Interested Subscribers are encouraged to contact HIROC at [email protected].

Through shared learning and partnership, we can create the safest healthcare system.