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The benefits of electronic medical records (EMR) have been widely espoused. While there are detractors to EMR, which are intended to improve documentation by and communication between health care providers, their prevalence will only increase going forward. To you, readers, EMR may be old news. Radiology practices were among the first in health care to adopt a version of EMR through the utilization of PACS.
PACS are convenient in that they allow for radiology studies to be interpreted in any location where a computer and connectivity can be found without the need for physical films. PACS also allow for increased efficiency in the drafting, sharing, and archiving of radiology reports. However, these benefits are not without potential drawbacks--especially in the legal arena.
As attorneys for plaintiffs injured by alleged medical malpractice become more accustomed to EMR across medical disciplines, they are developing strategies for using EMR to their advantage during the course of litigation. Radiologists and radiologic technologists should be aware of how metadata and the copying and pasting of information can be used to their detriment in medical malpractice actions.
Metadata doesn't lie (Or does it?)
Like other forms of EMR, PACS create and maintain a variety of behind the scenes "metadata." Unlike information consciously entered into the medical record of a patient by a PACS user, metadata--or data about the data--creates an audit trail regarding PACS usage often logged without the user's knowledge. Metadata can include myriad information such as the elapsed length of a radiology study, the time at which image processing was complete and the study was ready for review, the time at which a study was first reviewed and by whom and for how long, and whether the study was ever reviewed or re-reviewed by any other PACS users at any point.
It is important to understand that litigation takes places in hindsight in a vacuum. Where a radiologic technologist might perform dozens of studies a day and a radiologist might read hundreds of images a week, a medical malpractice case will typically focus on only a few radiology studies upon which the plaintiff and her experts will have an infinite amount of time to review and scrutinize. Furthermore, the outcome of difficult clinical and radiologic presentations is known at the time of review. For example, it's known that the questionable area on that chest X-ray turned out to be lung cancer; it is known that the inconclusive ultrasound imaging did not detect abnormal fetal development. These factors make many radiology malpractice cases difficult to defend from the outset. Savvy plaintiffs' attorneys seek to augment their allegations by making use of the metadata from relevant studies.
Take, for example, that same chest X-ray which was ordered to rule out a pneumothorax but demonstrated early signs of lung cancer (many radiology malpractice cases involve findings other than the indication for the study). The plaintiff could turn to the metadata in an attempt show that the film was only briefly reviewed by the radiologist. If the jury is lead to believe that the radiologist was not being careful and thorough, then they may be more likely to find that the radiologist did not comply with the standard of care. In the ultrasound case, a similar tactic could be used to argue that the study itself was not adequate based on the length of the study.
Metadata created by PACS may leave other trails to be pursued by plaintiffs' attorneys. Radiologists and other health care providers must be cognizant that they leave an electronic mark every time they open a study--which can lead to unwelcome questions. Why did the radiologist re-review the study the next day after the outcome was known? Why did her colleagues also review the study? Did she lack confidence in her original interpretation? Is this a tacit admission of negligence?
 A few final points regarding metadata are worth considering. First, it's likely that most judges would consider metadata to be part of the medical record. Therefore, alteration or deletion of metadata is equivalent to alteration of a medical record. If alteration of metadata is discovered, a judge might instruct the jury that they can assume that the metadata was altered because it was unfavorable to the defendant. Alteration of medical records may also give rise to, in certain circumstances, sanctions or punitive damages.
Second, metadata is not all doom and gloom. There are circumstances in which metadata can be used for the benefit of the defense. For example, if the plaintiff infers that an emergent study was not read in a timely manner, the radiologist can use the metadata to show that a study was ready as soon as it was available. Finally, not all metadata may be discoverable, that is, defense lawyers for a radiologist or hospital may not be required to produce all conceivable metadata, especially metadata that does not relate to the patient at issue.
Copy and pasting: only as good as the underlying info
Another potential concern in using EMR and PACS with implications for medical malpractice actions is the ability to copy and paste information. There are differing opinions on whether the use of EMR saves time. Either way, in certain circumstances, it's tempting to copy and past information from other parts of a patient's record, a feature which most EMR systems allow.
When information is copied and pasted, perhaps from an earlier radiology study which was used for comparison, inaccurate findings can be carried on down the line and compound any negative effect on patient care. This, in turn, can lead to very difficult circumstances to defend in a medical malpractice case. It's quite unfavorable when an error is repeated on serial radiology studies. It is worse when the erroneous information is actually copied from earlier studies. A plaintiffs' attorney will argue that it shows that the radiologist was both negligent and inattentive (of course, they would use the words incompetent and lazy). Every interpretation of a radiology study must be able to stand on its own.
There are, however, times when copying and pasting can lead to increased accuracy. For example, a patient's medical history and indications for imaging can turn into a game of telephone tag between the ordering physician, nurse, radiologic technologist, and, finally, radiologist. An omission as simple as the term "trauma" or "chronic" in describing a symptom might lead to a less useful interpretation of a study. In this case, copying and pasting the accurate information gathered by earlier health care providers might lead to a better interpretation of a radiology study.
Conclusion
The purpose of this article is not to turn radiologic technologists and radiologists against EMR and PACS. Instead, the hope is that by understanding how features of these systems may be used to the detriment of radiologic technologists and radiologists in medical malpractice actions, radiologic technologists and radiologists can take steps to minimize their risk and, hopefully, improve patient care. That is to say, it would be our suggestion that radiologic technologists and radiologists learn about the EMR and PACS they use in their daily work. Rather than changing how they practice to avoid pitfalls in these systems, the best radiologic technologists and radiologists will use the advantages of EMR and PACS that were previously unavailable to them to improve their habits, skills, and abilities.
Heather E. Hansen, Esq., and Jeffrey P. Brien, Esquire , are on staff at O'Brien & Ryan, LLP, based in Plymouth Meeting, Pa.
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