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Jon D. Rubinstein of Cohen Placitella & Roth.  Courtesy photo Jon D. Rubinstein of Cohen Placitella & Roth. Courtesy photo

Most hospitals and medical facilities have shifted from using paper medical records to electronic health records (EHR) to create, access and store patient information. For example, Epic Systems Corp. (Epic), a health care software company that provides EHR services, holds over half of all U.S. hospitals’ patient medical records. The self-proclaimed story behind Epic’s name is simple: “An ‘epic’ is a glorious recounting of a nation’s events. Like the Iliad or Odyssey, our electronic health records chronicle the story of a patient’s health care over time.”

However, in medical malpractice litigation involving claims such as the delayed diagnosis of or failure to treat a particular medical condition—where knowing the story of a patient’s health care over time is paramount—health care defendants refuse to provide plaintiff-patients access to their EHR. Instead, defendants will provide a paper printout of portions of the EHR, what medical facilities self-define as the “legal medical record,” and audit trails. Audit trails are spreadsheets created by medical facilities’ lawyers that show what times individual health care providers accessed a patient’s EHR; however, these spreadsheets fail to show what specific information was viewed, rendering them mostly useless. But because a patient’s EHR contains all of the information entered, viewable, modified, cut and pasted, and deleted by health care providers, in chronological and sortable order, access to a patient’s EHR can reveal crucial, detailed, and time-stamped information not otherwise knowable from select paper printouts and audit trails.

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