Responding to Requests for Records and/or Testimony

…in the age of electronic information, some things a treating physician should consider

by C. Thea Pitzen

At some point in their careers, many physicians – especially those who treat patients allegedly injured as the result of another’s negligence – will be called upon to provide copies of medical records, and possibly give testimony in a deposition or a court proceeding.

Considerations with digital records

In this age of electronic charting and communications, there are several things treating physicians should be cognizant of, chief among them that such requests for records include not just the chart itself, but also many electronic communications relating to the patient. This can include emails, texts and transcripts or summaries of conversations as well, whether between the physician and the patient or the physician and other consulting providers. All of this material is discoverable, subject to pertinent HIPAA considerations.

Physicians should also be aware that in this age of electronic record-keeping, electronic medical records (EMR) contain substantial non-medical information; that is, metadata that shows any time the record is accessed, any time the record is altered or changed in any fashion, and how many times the record has been reviewed. Physicians should be aware that they might be questioned about why they accessed a certain record so frequently, as well as why and how it was edited. This metadata is stored and becomes part of the permanent medical record. It is, of course, important to maintain accurate and thorough medical records at the time of treatment.

Social media posts are subject to discovery

More broadly, it’s important to understand that social media is also subject to discovery. If a party maintains a Facebook page, Twitter account or other social media presence, to the extent that any posting is relevant to a case in litigation, that posting may have to be produced. For example, in the interest of time, a physician might send a quick text or instant message to a colleague about a particular patient’s care. Such communications, however brief, may be subject to production in a subsequent legal matter.

It’s a wise old adage – made even more relevant in this new age of electronic communication – that you shouldn’t put anything in writing that you wouldn’t want to see on the front page of tomorrow’s newspaper. Today, that writing doesn’t have to be on paper – it can exist as an email, a text, or anywhere on the Internet.

Seek advice prior to testifying

When treating physicians are asked to give depositions – pre-trial testimony – they should immediately seek out the risk manager of their practice or hospital to discuss the matter. It is also wise to consult an attorney, and when appropriate, to have that attorney attend the deposition as well. It’s rare that anything contentious arises in these instances, but an attorney can ensure the deposition proceeds in strict accordance to applicable rules.

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This article published in Hampton Roads Physician Spring 2017 issue.

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