Journal of AHIMA - March 2011

That previously unavailable set of data offers a new source of attorney questions.

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
information.

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
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
relevant period

Explaining Ambiguous Logs

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 deposition.

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. ¢