As medical errors reign as a leading cause of death and injury in the United States, the efficient and effective resolution of medical negligence disputes becomes increasingly necessary, albeit uncommon. Despite the frequency of medical errors, the quality of medical care in the United States has increased over the last several decades. This improvement has been due in no small part to the widespread adoption of Electronic Medical Records (EMRs) by healthcare providers across the country. While EMR systems have done their part to improve patient care, they are not designed for litigation. Indeed, the widespread use of EMR technology has created several unresolved legal issues that unnecessarily complicate the discovery process in medical negligence litigation. The substantial confusion surrounding the discovery of information within EMR systems invariably leads to an unnecessary motions practice that overburdens the judicial system's limited resources. Three common and related legal problems include the "Privilege Problem," the 'Production Problem," and the "Preservation Problem." The Privilege Problem concerns the possible interplay between HIPAA and the rules of discovery. The Production Problem refers to the undue costs and unreliability of a reproduced medical record for purposes of litigation. The Preservation Problem arises from the need to regularly update patient information. This Comment recommends that all litigants in a medical negligence action should have remote access to a patient's EMR file and that certain changes should be made to the design of EMRs to ensure the integrity and reliability of the record during litigation.
Who Guards the Guardians? Simplifying the Discovery of Electronic Medical Records,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol90/iss1/7