METADATA: A New Legal Foe to contend with.

Designer Microsoft.com 

      One of the greatest changes in the practice of medicine in recent years has been the introduction of the electronic medical record (EMR). A change heralded by many with significant promises, and welcoming enthusiasm at the time. However, this was not the case, especially when we started seeing “The Law of Unintended Consequences” play itself out in many allegations of medical malpractice across the country.  

      Thus, for many the good old days of the paper chart comfort and safety vanished rapidly from the charting landscape shortly thereafter. As we knew it, our former world of paper charting practices was turned inside out, and all because of a new unanticipated legal risk exposure introduced by this new technology—metadata. Plaintiff attorneys began and are still using EMR audited metadata to bolster their electronic discovery, much like they used to when subpoenaing paper charts to determine a case's merits; or to see if it was or is worthwhile to pursue. 

        Metadata is commonly defined as “data about data” by techno-savvy folks, that is, non-med-malpractice attorneys. Conversely, to med-mal attorneys is the data encrypted (attached) to an EMR that describes the file in its totality.  Basically, meaning the extra “hidden” (encoded) information that is created and embedded every time a chart is opened, amended, revised, or edited.  Essentially, this is tracking the author’s usage or “footprints” in a timeline fashion of a patient’s electronic medical record. Metadata is particularly important in healthcare litigation because it firmly establishes the “who,” “what,” “where,” “why,” “when,” and in many cases the “how,” basically analogous to someone’s fingerprints (1).  In other words, metadata shows the author’s log-on/log-off times, the dates & times of what was reviewed, revised, amended, added, or deleted, and for how long the chart was “open”.  This makes all electronic interactions not only documented and time-tracked, but ultimately discoverable too; therefore, potentially increasing the legal vulnerability of an EMR user.  

      Plus, this raises the risk/possibility of fraud allegations against the provider if the services rendered vs. billed are questionable by the EMR audit trail. These time stamps of clinical activity under Federal law are discoverable and admissible in most jurisdictions in civil trials (Williams vs. Sprint— United Management Co. 2005, WL2401626, D. Khan, Sep 29th, 2005). Legal experts believe the increased usage and spread of EMRs have reshaped the medical liability landscape by altering the way American courts will determine the Standard of Care.  

      Moreover, patient treatment errors may be unproven or unclear, yet the collective weight of time-care stamps discrepancies in alleged med-mal cases could be so heavy that in itself could render the case difficult to defend as many legal scholars as possible and theorists observe.  While discrepancies in general do not necessarily mean negligence, they certainly can call into question the provider's credibility rather easily.

 It is imperative for medical professionals to carefully and timely chart patient records because metadata is making note of their every move.  

      Often times that’s all it takes in some juror’s mind…which story is the most credible one, the plaintiff’s or the defenses?  

Resources Researched: 

1. Blake, Carter, Note- EMRs: A Prescription for Medical Malpractice Liability? Vaid, J. Enterprises & Technology, L 385 (2011), Vol. XVII, Number 4. 

2. Kern, Steven, Hidden Malpractice Dangers in EMRs, Med Scape Business of Medicine, Dec 3, 2010 (589724), www.medscape.com assessed October 30th, 2015. The 2015 MAPA