Health Care: Electronic Records Create Legal Issues

As health record keeping becomes increasingly electronic, issues arise about the handling of those records and their legal treatment. These records are far more complex than the paper records of the past. The electronic records capture more information and perhaps more importantly disclose who has access to the records and when persons exercised such access. In short, they serve as both health records and audit trails all wrapped together.

The Federal Rules of Evidence, which govern litigation in all federal trials provide guidelines for electronic discovery. While these rules only apply in the context of federal litigation - often in the health care context of whistle-blower and anti-kickback actions - currently, the states are patterning and will continue to pattern electronic discovery rules after those of the federal court system. Ultimately, this will mean that health care corporations and providers will have to adopt systems to maintain health care electronic data and facilitate the retrieval of this information.

The industry is beginning to look at standards for maintaining and retrieving this information. This is an area of trial and error that will become of even greater importance to the health care industry.

For a further discussion of the issues involved, please see Modern Healthcare, page 28, May 29, 2008.