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Lost in Translation: Electronic Medical Records, HIPAA and Litigation
In February 2009, Congress enacted the Health Information Technology for Economic and Clinical Health (HITECH) Act, for the purpose of improving the electronic exchange of health information via health information technology (HIT). Additionally, the Healthcare Insurance Portability and Accountability Act of 1996 (HIPAA) provides specific rules regarding the disclosure of protected health information (PHI). Health care providers and their attorneys must be aware of the risk management issues created by the cross-requirements of HIPAA and HITECH, including how the electronic medical record (EMR) will be viewed and interpreted in the event of litigation.
Since the enactment of HIPAA in 1996, there have been wide-ranging applications of its provisions in the litigation setting. In most states, the discovery process in medical malpractice and other personal injury cases have been substantially altered to ensure compliance with HIPAA. The latter has changed that process with respect to medical records requests, the disbursement of records and information to expert witnesses, and ex parte interviews with a plaintiff's treating medical providers. These protections exist for all patients and should be closely adhered to by all concerned. In fact, HIPAA and HITECH provide for significant civil fines and penalties for beaches of their provisions.
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