That previously unavailable set of data offers a new source of
Many attorneys have been asking for HIM staff to produce
and comment on these logs in a deposition, since they can
reveal details on how a patient was treated and who had access
to what information. A frequent deposition question asks
what other information a provider had available at a certain
time. For instance, was a key radiology report available in a
preliminary status at a certain time, and was that document
reviewed? Access logs could fill in the details.
Access logs are the number-one reason that HIM professionals
get deposed, Moore says. “That is a hot-button topic.”
Because access logs can be lengthy and difficult to read,
HIM professionals could be deposed by plaintiff attorneys to
discuss a log’s content and organization. Before a deposition,
HIM professionals need to review how their EHR documents
access logs and know how to decipher the sometimes complex
Because the EHR produces more granular, “secondary”
information outside of the typical patient records, Moore
recommends that HIM professionals work with their attorneys
prior to a deposition to review requested documents and
ensure they can interpret the information correctly.
What to Review in Advance
MOORE RECOMMENDS THAT HIM professionals and
Explaining Ambiguous Logs
their attorneys review the following types of information
prior to a deposition:
x Number, types, and locations of computers
x Operating systems and application software
x File-naming and location-saving conventions
x Back-up and archival disk inventories or schedules
x Locations of relevant digital records
x Back-up rotation schedules and archiving procedures
x Digital records management policies and procedures
x Corporate policies regarding employee use of
company computers and data
x Identities of all current and former employees who
had access to network administration, backup,
archiving, or other system operations during the
HIM professionals may also be called on to explain logs that
attorneys could find confusing or ambiguous.
Take, for example, a patient who dies during an operation.
A lawsuit is filed, and the plaintiff’s attorney requests the
patient’s records and corresponding access logs. The log shows
the surgeon entered the patient’s record three days after the
surgery and made an edit to the record.
The plaintiff could assume the surgeon manipulated the
HIM professionals may also be called
on to explain access logs that attorneys
find confusing or ambiguous.
record to hide mistakes. However, the surgeon may have
entered the record to review and electronically sign the
dictated notes, which was recorded by the system as an edit.
In a deposition, an HIM professional would need to explain
what “edit” can mean in an access log. This explanation could
back up provider testimony on their actions in the record.
Know Your Sources, Practices
HIM professionals should work closely with their attorneys
before a deposition. The source of plaintiff questions likely will
come from the information they request in a subpoena. When
asked to participate in a deposition, the HIM professional
should review the subpoenaed documents and get comfortable
with the requested content.
There are times when information might be requested
from both the current EHR and the previous system or paper
chart. If this is the case, become familiar with all information
systems, old and new, before the deposition, Moore says.
HIM professionals also should thoroughly understand
their organization’s electronic data retention policies and
procedures. Plaintiff attorneys may question why a record
was not retained. Reciting the organization’s policy will not be
enough. HIM deponents should understand how the retention
policy operates in practice.
Moore reminds anyone being deposed to stick to their
expertise and have a solid understanding of their role in the
Typically HIM professionals are deposed to provide
information unknown to the plaintiff regarding
the organization’s EHR system and records. Their
answers should be limited to the question and avoid
unnecessary elaboration. For example, they should
not comment on how a provider handled patient
care, Moore says. Plaintiff attorneys may prod deponents for
incriminating comments that help their case.
“When you help, you hurt,” Moore says. “You think, ‘Well let
me just explain this in a way that this plaintiff attorney will
understand so they will stop asking me that question.’ But
usually when you are helping and going beyond the question,
you are hurting because you are just opening up avenues for
new questions or potential avenues for new causes of action.”
Above all, it is best to observe the following when giving a deposition: Speak to only the presented question, but also speak
the straight truth. ¢
Chris Dimick ( firstname.lastname@example.org) is staff writer at the Journal