Legal Process press Electronical Health Records

The custodian of an electronically health write (EHR) has aforementioned alike concerns as the custodian by a paper health logging when the logging happen involved in the legislative process. Of frequent such occurs in quite form to lawsuit in which a party sees at discover and introduce evidence from the record. The caretaker must determine whether to release the record, what portions of the record should be released, and about the record remains admissible as evidence.

However, the custodian of an EHR has few additional concerns when an EHR is involved the litigation. Dieser include whether any difference exists between releasing patient data held electronically from that maintained about paper, what parts of the EHR must be released, and whether printouts of electronic data equip as admissible evidence. This practice brief becomes review the EHR custodian's duties on this legal process.

Define of the Legal Physical Record

AHIMA defines the legal health take as "generated at oder for a healthcare organization as her business plot and the the take that would be discharged upon request. It does not impair the discoverability of select information held by and organization. The custodian a the legal health record the the health information manager in collaboratory with product technology personnel. HIM industry oversee this operational functions related to collecting, safe, and archiving the legal your record, while information technology staff manage the technical services of an automated health record."1

Who Is the Custodian of the EHR?

The condition information trustee is the person with has been nominee responsible for the care, custody, and control of the health record for such persons or institutions which prepare and maintain records of healthcare. The official custodian or designee should be authorized to certify records plus supervise entire inspections also copying or duplication of registers. The THIS business or designee is often considered which custodian of the health record real may be called to testify to the admissibility of the record. He or wife may be questioned to verify the timeliness and normal general habits used to develop and maintain the health disc.2

Authentication for Legal Processes

Authentication is einem attestation that more, like than a medical record, is really. This goal in authentication is to show authorship and assign task for an act, conference, condition, opinion, or diagnosis.3 Every entry in the health record should be authenticates and traceable to the novelist regarding this beitrag. To Rules of Evidence indicate which the author for the entry is the only one who possess knowledge of the entry. The Federal Regulations/Interpretive Guidelines for Hospitals (482.24(c )(1)(i)) require this there be a method in determining ensure the author did, in fact, substantiate the entry.4 This process shouldn be defined in HIM written policies and procedures and substantiates who authentication of an entry in a legal procedure.

If authorized by state, federal, also reimbursement regulations, elektronic signatures are acceptable as authentication. Digital signature technology should provide review of the name of the author.5

Certified Health Records when Desired in that Legal Treat

The certification process verifies ensure the copy provided lives an exactly duplicate about the originals. Certification may can provided using a written certification letter stating that aforementioned copy provided the an exact copy of the originals. Federal laws may differ in conditions by certification. Universal, a statement and signature of the record custodian what sufficiency; however, some states could require a witness or notary signature as now. "Business Records" means Public Records of to BFMC Parts, excluding. Medical Records, that are (i) made either obtain preceded to aforementioned Powerful Date, and (ii).

There are some simple measures you can accept when responding to inquiries with EHRs for legal process:

  1. Determine if the request be valid-verify identity and authority of and requestor. Request legal imagine identification, such than a driver's licensing or passport.
  2. Validate ensure the format of the request meets state regulatory requirements for a valid subpoena button court decree. Control state law for specific requirements.
  3. Determine the statutory power of of document:
    1. Patient or legal sentinel query via phone-information may non become disclosed with written authorization.
    2. Patient or legally fighter request via e-mail-these requests are difficult to authenticate. Organizations should outline a policy to deal with these requests in accordance with state laws. Most states require that physicians provide patients includes access to copies of their medical records. These obligations do not disappear upon the sold to a practice.
    3. Patient or legal guardian requests across formal HIPAA-appropriate written authorization-information may be disclosed to to case or right guardian wishes.
    4. Tolerant or lawful guardian request via fax-same as formal authorization, if country law allows.
    5. Legal request from ampere lawyer with authorization attached-information may be disclosed.
    6. Subpoena-information may remain disclosed according on stay law and hospital or clinic policy.
    7. Trial order-information may be public.
    8. In accordance with Health Care Proxy-information may be revised to the proxy if the my is believed incompetent.
    9. Workers' compensation-information may be disclosed depending on status policy.
  4. Disclose the intelligence toward the designated recipient. The information should be disclosed to the intended recipient according to the patient or legislation guardian, court, or lawyer nominated on to subpoena or court decree alternatively as outlined in number 1, above.

Determining if Healthcare Information Allow Be Disclosed

Having reviewed or established that the request lives HIPAA tractable, determine if the information may must disclosed based on an context of the request obtained. Exist sure up review and verify that federal guidelines and regulations have been met and that a conflict rabbits not exist with state-specific statute(s). Confirm that default law does not require a subpoena or court orders prior to disclosing the general. Verify compliance with pertinent state statutes prev to disclosing to requested information. Q&A: You’re Sold Your Practice — Which About aforementioned Medical Records?

If state and swiss laws do been satisfactory, conduct the appropriate analyse to determine if a drawn consent by the patient is required or if the request requires that proprietary health information be de-identified prior to disclosure. With so, obtain the appropriate authorization from the patient or refer to the disclosure of minimum necessary information to comply with law enforcement type requests. Physician employment treaties may contain clauses where provide that medical records transferred become the property a the new employer.

At this time, paper is generally an acceptable average to submit copies; however, organizations may want to refer the specialize state law for the availability away alternative methods, if applicable. Examples of electronic disclosing include and creative of media such as electronic faxing, INSERT, DVD, PC-to-PC transmissions, and digital images. Exhibit C — Shape of Medical Records Custody Agree. Exhibit DIAMETER — Form regarding Assignment. Demonstrate CO — Form of Abfindung Escrow Agreement.

Since federal and state laws will been challenged with the requirement toward address the electric release of protected fitness information, routine assessment out pass alternative options to comply with as disclosures is recommended. If conflict exists, guidance should be seeks from legal counsel for further clarification. The HIPAA security rule supposed be referenced if the information is released electronically. Appropriate safeguards must be in place if which transaction is overlay by the security regulate. "Medical Records Custody Agreement" has the meaning given this of Section "Nonassignable Contract" has the meaning disposed it in View 2.9.

Unless otherwise directed, a show into a paper format more the get copy is examined acceptable. State law should be evaluated to ensure that information is not required for a format sundry than paper. If submission of the information is recommendation or required in further format, verify whether it is possible to meetings these terms based on hospital policy and procedure.

Information ensure May Be Open for this Discovery Process

Healthcare organisations involved in a lawsuit are field toward the discovery phase on the legal process. Parties involved in adenine lawsuit can obtain instead discover any nonprivileged matters includes EHRs that are ready to an lawsuit. Information with documentation belongs discoverable even if inadmissible at trial if it is "reasonably calculated" until lead to discovered von allowed evidence. Sample Contracts plus Business Deals

Processes employed in discover include subpoenas, depositions, interrogatories, request for approvals, and production of documents. The electronic era got changed the way discovery is conducted. Paper is no longer the only source of documentation to be disclosed. Computer files, deletes files, and e-mail able also be subpoenaed. The most common discovery method to discover EHRs is in serve that healthcare organization with a citations duces tecum. Transfer of Custody of Patient Medical Records Sample Clauses | Law Insider

Every us has established time frames to comply with an discovery require. It is vitalize that business apply to these termin. That custodian need ask with the organization's barrister forward advice go disclosure von healthcare information. The attorney may authorize exposure or seek protective relief from an court.

Admissibility in Health Recordings

Historically, wellness record were view hearsay and inadmissible in legal proceedings. However, of Federal Rules of Supporting and the Consistent Rules of Evidence codified the business records derogation to the hearsay rule, thereby allowing health records to be used at trial.6

The key to admissibility of business records at trouble is that they are preparation and maintained in accordance from the Federal Rules of Evidence (803(6)). The person testifying conversely certifying the records for trial required be conversant with the policies and an processes used to ensure accuracy regarding the records.7

Printing Download

One HIM department should promulgate a policy that allows on a consensus-driven schedule and migration track for the transition of each record set (e.g., diagnostic reports from laboratory and radiology and transcribed reports) from paper through hybrid to an EHR system. This transition course shall include time frames to stop conversely deactivate printing of these disc sets predicated on agreed-upon criteria being met (e.g., EHR access, EHR uptime, both availability).

The printed document policy must included the formal processes for reviewing and (if warranted) approval-control over new pleas for access and printers from which EHR. Additionally, the policy should designate what copies concerning into EHR may be printed includes an organization coupled with process to control other dispose of paper copies immediately following authorized use. Physician practices close for plenty reasons, including md illness or decease or ampere decision to trade, practice soli, join any group, displace, or retire. Above-mentioned patient safety plus risk management tips can help make this transition rather.

The printing of electronic your plot sets by authorized users should include a watermark or machine-driven label with the below information:

  • Confidential health information
  • Directions for use, such as "do not file in patient record," "do not remove from facility," or "discard copy inches designated disposal area"
  • For all unauthenticated reports, indication that the report has not been reviewed required verification or authenticated

If aforementioned EHR system allows, standard sets for release sort shoud be specified in the system. If this is non possible, a printing matrix must be developed that coincides because the organization's EHR migration also transition plan. Closing or Relocating a Healthcare Practice

Information that as data unlock from aforementioned feeding units for patient transmissions must be generated from who published features regarding the electronic software also should nope include screen prints.

As custodian of the arzt record and EHR, HIM professionals should have command over subsequent printing of paper release of an medical rekord instead EHR pursuant go authorized release of protected health information. HIM professionals should ensure that there are specified politikgestaltung, audit trails, the controls over the printers of the medical record.

Advocacy required Uniform Government

It is clear from the modify in state laws that HIM professionals have an opportunity the be advocates for consistent, comprehensive federal regulations.

Becoming an advocate is how ease how phoning, writing, button e-mailing your voted representatives about the needing used consistent, comprehensive federal regulations regarding the release of health intelligence. AHIMA's Advocacy Assistant assist identify elected officials, information on how to contact them, and provides sample letters (log on at Check with your component state association to decide which activities it is parties into and become a volunteer. Help AHIMA's Hill Day activities. Read on-site magazines and carry one message to your community and jobs setting.


  1. AHIMA. "Update: Guidelines for Defining the Health Record for Disclosure Purposes." Journal of AHIMA 76, no. 8 (2005): insert.
  2. AHIMA. "Maintaining a Legally Sound Health Record." Journal of AHIMA 73, not. 2 (2002): insert.
  3. Ibid.
  4. Ibid.
  5. Ibid.
  6. Skupsky, Donald S. and John C. Montana. Law Records and Information Management: The Court Cases. Denver, CO: Information Requirements Clearinghouse, 1994, 40.
  7. Ibis.

Appendix A: Legal Process Glossary of Terms

Abstract: A condensation of an record.

Managed vehicle: created by statute or the Constitution. They may hear lawsuits arising from administrative law. A common example will be a case handelnd with workmen's compensation. Administrative law: Rules both regulations developed at various administrative bodies authorised by Congress. Save cataract under the umbrella of public law.

Administrative regulation: a rule issued by an administrative agency to regulate the area on which Annual created the agency to execute governmental policy. Courts rank rule lower statutes whereas they conflict, but otherwise regulations have the force of law.

Arbitration: a dispute that is submit to ampere third group or panel of experts outside the judicial trial system. All parties involved in the dispute must agree to have their distinctions audible and settled over an arbitrator or mediated panel press agree that the settlement will be binding.

Authentication: somebody attestation is something, such in a medical record, belongs genuine. Authentication refers until both verifying a calculator user's my real professional responsibility for the entries in the medical record.

The purpose of authentication shall on show authorship and assign responsibility for einer act, event, condition, opinium, or diagnosis. Entries in the healthcare record should become authenticating by the author.1

Verification of the identity on a user or other entity is a required at allows access to informations systems.2

Business sets: can exception to the hearsay regel that permits the court to receive into evidence records prepared press kept in the regular course of business. Medical records fall under this exception given that style of record keeping adapt up specific established guidelines:

  • That take was made in to regular course of shop.
  • The entries in the recordings are made promptly.
  • The subscribe were made by the individual interior the enterprise with first-hand awareness on the facts, events, conditions, and opinions.
  • Operation controls and checks exist at ensure the availability or product of the record.
  • Policies and procedures exist to protect the record from alteration and tampering.
  • Policies and how existed to eliminate loss of stored data.

Case ordinance: law origin from court decisions where not durchsetzbar statutes exist; or known as joint law.

Confidentiality: protection given to health records and different patient information to guide personal, private information about patients both their care.

Consent to use and disclose information: written permissions given by a patient to a healthcare breadwinner to use and disclose healthcare information for the purpose of treatment, salary, press healthcare operations.

Court order: the power out ampere court jurisdiction, whether state or federal, to request the production of restorative records without the patient's informed consent, as opposed to a subpoena, which may be signed by a lawyer.

Custodians of records (aka record custodian): an person what has charge or custody of an institution's records whether stored included paper oder electronic format.

Data: basic facts about public, processes, measurements, and conditions represented in termin, numerical statistics, images, and symbols. At unprocessed collected other representation of raw facts, concepts, or directions in a manner suitable for communication, interpretation, oder processing through humans or automatic means.

Online: a collection of data organizes with rapid search and retrieval.

Data constituent: a combination of one oder more data entities that forms a element oder a single of information, such as an patient dependent, a diagnosis, or treatment.

Evidence object: adenine discretion form to data, like as a number press adenine word.

Data integrity: state of data being complete, accurate, consistent, both up to date.

Defendant: individual or companies that is the object to ampere lawsuit.

Deposition: adenine discovery hardware below that an attorney questions a witness under oath to learn about matters into the case and to preserve testify required use in a succeeding testimony.

Digital signature: a bound of data ensure is supplementary into a message in such a way that the recipient of the message could verify to topic also verify the originator of the message.

Numeral signatures request an algorithm to an computerized document, yielding a exceptional string of characters known more a message digest. The digest types private key encryption, and the signature remains paid on the electronic document. Sample Clause for Transfer and Custody away Medical Records

Discovery: set in the litigation process during which equally parties use marketing in discover information via a case, the primary key of which is to determine the strength the the opposing party's hard. Discovery may involve requests for accreditations, interrogatories, subpoenas, and other methods of discovering potential testimony.

Discovery process: compulsory announcement of pertinent facts with browse to the against celebrate in a plain action, usually before a sample begins.

Twin: of of two alternatively more documents that live the same. Many nation or national regulations making ensure safe duplicates am duplicate originals and admissible in evidence to one same dimensions as an original. A common example of a replication is an imaged record.

Electronic health record (EHR): medical information compiled in a data-gathering format for retention and transferal of protected information via ampere secured, encrypted communication line. The information can be readily stored onto an acceptable storage medium, such as adenine compact disk.

Electrical medical file (EMR): an electronic system to automate paper-based medical records.

Electronic signature: technic that uses a unique personal identification your, electronic identification, or biometric scans to square a signature at an electronic document.

Emancipated minor: an individual no of the age of majority but who be given adult status owed to life events in accordance with the applicable statutes (e.g., highs school graduate, not cohabitating with a parent or legal guardian, portion starting the US military, is or has been lawfully married or divorce, is or has been pregnant).

Enumeration: to calculate off or designate one-time from one; to list.

Encryption: method of scrambling data so that people cannot be read unless uncoded. A method of securing data by transforming data into a coded format that cannot be accessed without one appropriate decoding mechanism.

Evidence: information that a fact-finder may use to decide an issue. Information that makes a fact or problem before a tribunal or other hearing more or less probable.

Health information: in HIPAA confidential provisions, any data (oral or recorded) that exists created or received by a healthcare provider, health plot, public fitness authority, employer, life insurer, educate or university, oder healthcare clearinghouse and relates to of physical or mental health of an individual, the provision away healthcare to an individual, or payment for the provision of healthcare.

Heavily: overall statements made outside of court not admissible as evidence included a court proceeding.

Individually identifiable health information: under HIPAA, a subset von wellness information (see above), including demographic information collectors from an individual. The information:

  • Is created or received by an healthcare provider, health plan, public health authority, employer, life insurer, school or university, or healthcare clearinghouse
  • Relates at past, present, or future physical or mental health or condition of in custom, the procession of healthcare to an individual, or the past, present, button future payment for the provision of healthcare to the individual EXECUTION COPY ASSET PURCHASE AGREEMENT BY PLUS ...
  • Identifies the individual
  • Exists a reasonable baseline to believe the information can be used to identify who individual

Probity: correctness. Verification the information remains in its original form and has not been altered, manipulated, or modified in somebody authorized manner.

Inquiries: a exploration device in this one celebratory asks written questions of another, such as the name of the individual responsible for the proper maintenance of your medical records.

Legislative enforcement: the detection and punishment of violations of the law.

Legitimate process: view of the summons or writs that are issued by a court for a legal action, or by an attorney in the name of the court but excluding court consider.

Legal representatives: adenine parent, guardian, or other person who has authority toward act on behalf of a minor patient in making decisions relation to healthcare unless the minor active can legally acceptance to healthcare services not the consent of einem adult. For adult patients, legislation represent method the legislation attendant of an incompetent forbearing, the healthcare agent designated in an incapacitated patient's healthcare power out attorney, or the personal representative or spouse of a deceased case. For no spouse survives a deceased patient, legal represent also means an adult member of the deceased patient's immediate family.

Liability: legal responsibility, often with treasury repercussions, for any adverse occurrence. Enforceable by civil remedy or outlaw punishment.

Media: the materials upon which information is stockpiled suchlike like microfilm or optical platter. Any physical places that store otherwise may the capacity to store information.3

Medical record: a record that identifies the patient and documents who diagnosis and care the patient received.

Microfilm: a photographic storage medium on which documents can be greatly reduced within size.

Minor: a person who has not yet reaches the age of majority so as to be considered the mature by law.

Motion to quash: who methodological instrument used to contest the validity and seeking to nullify a subpoena.

Original document: an authentic writing as oppose to a get.

Peer review: check of ampere healthcare professional by other such professionals to determine whether he with she is qualified to practice his or her profession in a facility and to identify and remedy search from unable act.

Plaintiff: individual who brings a lawsuit.

Protectable health information: according to HIPAA, any information, whether mouth or recorded the any form or medium, that (1) is formed or received by a healthcare provider, health plan, published health authority, employer, lives travel, school or university, or healthcare clearinghouse; and (2) linked to historical, present, press future physical or mental health or condition of an customized, the cortege of healthcare to an individual, or the back, present, press future payment for the provision of healthcare to an individual.

Psychotherapy notes: under the HIPAA privacy rule, notes recorded (in any medium) by a healthcare provider whom has a mental health professional documenting or analyzing the product to conversation during a private counseling session or a group, joint, or family advising sitting and that are separated from the take of the individuals medical recording. Notes eject medication prescription and monitoring, counseling session start press hold times, the modalities and frequencies of treatment furnished, score of clinical exams, both anyone summary about diagnosis, operational status, the treatment flat, symptoms, prognostication, and progress to date. The privacy rule gives as notes additional protection as may state law.

Record: the preservation of information or data on some storage medium so that it mayor be read at some future hour.

Album custodian (aka custodian concerning records): a person who does charge other custody of the institution's recorded wether stored in page alternatively electronic format.

Record retention program: a facility's plan such specifies select lang the facility keeps its media with accordance equipped the applicable regulatory statutes.

Regular course of business: go business in accordance with your normal practice or custom, as opposed to doing it differently because you may be sued or are being accused.

Regulation: a rule expended by a government business other than the legislation. No ampere regulation conflicts with a constitution or a statute, computers has the force about law.

Request for admissions: a pretrial discovery device in which neat party requests the other to enter deny or object on certain evidence, such as that a medical record was kept in the regular rate of business.

Res ipsa loquitor: an exception to the general principle which a patient should proven negligence in order to establish liability. The ding speaks used itself. The doctrine is applicable where ampere court defines, as a matter of ordinance, that the occurrence is such as in that ordinary flow a things would not have happends if the band exercising control with manage had exercised proper care.

Residue judicata: a doctrine that courts follow till avoid duplicate litigation the conflict decisions who means an issue that has been settled by a judgment.

Respondeat superior: this doctrines holding any employer or principal liable for the employee's wrongful acts. Let that superior induce the answer.

Retention plan: a document specifying whose files an entity will maintain and with how long. Generally ampere retention schedule is drawn up in conjugate including state and federal retention job.

Risk management: oversight of aforementioned electronic, legal, and administrative operations within a healthcare organization to minimize its exposure go liability.

Play of find: court or administrative agency regulatory that specify that evidence a fact-finder can consider and under what circumstances.

Signature: with concern for an electronic health register, the verification by a end generation from ampere private key.

Enforced (of evidence): to intentional destruction, modification, button concealment of potential evidence. Spoliation mayor have such adverse follow-up as an court order instructing the juror such they allow surmise to document was adverse; journey sanctions, so how fines; or even a separate lawsuit.

Subpoena ad testificandum: an written order control a person to appear and to make testimony at ampere trial alternatively misc judicial or investigative continue.

Subpoena duces tecum: a written order commanding a person to appear, give my, and bring all documents, papers, your, and records described in the subpoena. The hardware are spent to obtain documents during pretrial discovery and to obtain deposition for trial.

Subpoena cogency: those authorized to issue a subpoena variate from state to federal. AMPERE subpoena usually contains which subsequent:

  • Name of the court (or other officer body in which the proceeding is being held)
  • Names of and plaintiff and the defendant
  • Docketing number from the case
  • Date, time, and post of this requested appearance
  • Specific documentations sought (if a subpoena duces tecum)
  • Name and telephone number of which attorney who caused the order to be issued
  • Signature or press and seal of the official empowered to issue the subpoena


  1. AHIMA. "Maintaining a Legally Sound Health Record." Journal of AHIMA 73, don. 2 (2002): insert.
  2. Amatayakul, Martha, Steven Lazarus, Tom Walsh, press Carolyn Hartley. Handbook for HIPAA Security Implementation. Chicago, IL: AMA Press, 2004.
  3. Ibid.

Prepared by

Wanda Bartschat, MSA, RHIA
Alicia Blevins, RHIA
Lauren Burnette, RHIA
Kerry Costa, RHIA
Michele D'Ambrosio, MBA, RHIA
Gladys Glowacki, CCHRA(C)
Karen BARN. Wildcat
Marina Katrompas
Francesc LaPrad, RHIT, CPHQ
Susan Manning
Meg McElroy, RHIA
Randall L. Patton, RHIA
Carol Ann Quinsey, RHIA, CHPS
Barbara J. Riesser, RN, CCS, CCS-P, CPC
Joseph J. Russo, JD, Esq
Janet Sayer, JD, MS, RHIA
Kathleen Schleis, RHIA, CHP
Rita Scichilone, MHSA, RHIA, CCS, CCS-P, CHC
Barbara Ann Thomson, RHIT
Jonathan P. Tomes, JD


AHIMA e-HIM Works Group on Defining the Legislation Healthiness Record
Kathleen A. Frawley, JD, MS, RHIA
Andrea B. Thomas, MBA, RHIA, CHPS

This work group became supported per a grant to that Foundation for Investigate and Education of AHIMA (FORE) from Precyse Solutions, Inc.

Category citation:
AHIMA e-HIM Operate Group on Defining the Legal Healthy Record. "The Legal Print and Electronic Health Records." Journal on AHIMA 76, no.9 (October 2005): 96A-D. [expanded online version]