Thomas R. McLean

Consider this hypothetical situation: A patient with new onset of a major depression is evaluated by a physician who has found no evidence of suicidal ideation. The doctor concludes that the drugs Sadoff and Newhappiness would be appropriate treatment, but she is unclear as to which is better. The doctor has just purchased a new electronic medical record (EMR) system that contains a continuously updated PDR, which she consults to review both medications. Although the doctor discovers that Sadoff has been linked to suicidal episodes, she prescribes this drug because patients are less compliant with NewHappiness (which has no known connection with suicide). When the patient does commit suicide, his family is outraged and files a wrongful death action against the doctor. During the discovery process, the family learns that the doctor knew about Sadoff ’s side effects and knowingly prescribed this drug. The family wants this information used against the doctor. 

In this hypothetical, the family was able to learn about the doctor’s decisionmaking from an examination of the 

. Like any computer, an EMR generates metadata during its routine operation. This metadata is functionally an audit trail of how the computer was used. Anyone who uses an EMR needs to realize that every time they open a document (including patient notes, medication lists, and radiographic images) their “digital fi ngerprint” is left behind. This digital fingerprint, which can be traced back to the physician with as much certainty as a normal fingerprint, is actually easier to detect than a normal fi ngerprint. Unfortunately, few physicians using EMRs are aware of the potential treasure trove of information available in metadata and how it might be used against them. 

Metadata comes in two forms: system and application. System metadata are marks automatically made on electronic documents by computers. Examples include computer markings as to when a document was signed (time-signature metadata) and by whom (identity metadata). Without system metadata, a computer cannot function properly. Unlike humans, a computer cannot actually remember anything. For example, when the “back key” of a Web browser is hit, to find the last website visited, the computer must consult its system metadata. In the hypothetical presented, analysis of EMR system metadata allowed the family to discover whether the doctor consulted a PDR and what medications the doctor reviewed. 

In contrast, application metadata is generated by the computer user. Microsoft Word’s “track changes” feature is probably the best example of application metadata;when the feature is “on,” Word displays some of the application metadata associated with the program (the history of changes made to that document). The potential for application metadata to “un-erase” comments made in an EMR is potentially frightening. For example, if in the heat of the moment, a physician enters into the EMR an unprofessional comment concerning another doctor, examination of the EMR’s metadata might discover the comment, even though it was deleted. Fortunately, for technical reasons that are beyond the scope of this article, such application metadata may be stored only for a limited time. 

The ways in which metadata can be used are limited only by the imagination. Th e following examples explain how metadata might be used to objectively measure a physician’s productivity and quality of care and how it might be used as evidence. 

In the business world, a classic way to obtain objective data on an individual’s productivity is to perform a time-and-motion study. To perform such a study, an observer with a stopwatch follows the subject throughout the course of a business day, timing how long it takes to perform various job-related tasks. As the need to employ an observer makes such studies labor intensive, many businesses cannot afford to routinely perform timeand- motion studies. However, in healthcare, time-and-motion studies are going to become more popular, with physicians electronically tracked throughout their workday via a combination of 

. Such data will provide employers with an estimate of how much time a physician actually spends with patients. Indeed, some software vendors currently off er products that can automatically perform time-and-motion studies on primary care physicians and psychiatrists. 

EMR metadata can also be used to assess the quality of care provided. Because physicians leave behind digital fi ngerprints, it is possible to discover what information a physician reviewed. No longer can physicians write “wnl” (which lawyers usually translate as “we never looked”) into a patient’s chart and expect to get away with this minor deception. If a physician’s digital fi ngerprint is not on the laboratory e-fi le and the physician writes “wnl” in the patient’s chart, the doctor’s credibility will be substantially undermined. Not surprisingly, many third-party payors want access to EMR metadata—which will provide objective evidence as to whether they are receiving the quality of care they purchased. 

Issues of quality of care and credibility can be pivotal in medical malpractice litigation. Here again, we can see the importance of EMR metadata. In the first published case of EMR metadata evidence being introduced and used in medical malpractice litigation, the metadata seriously undermined an 

. In this case, after a patient awoke paralyzed from a back operation, suspicion initially fell on the surgeon. However, when the plaintiff obtained metadata from the operative record demonstrating that the anesthesiologist’s postoperative note had been written just minutes after the operation began, and that a 90-minute gap existed in the monitoring record, the nature of the litigation changed. Faced with an awkward situation, the anesthesiologist settled. 

When all forms of litigation are considered, some powerful commentators do not believe that all metadata should be discoverable. 

 (a research and educational group composed of prominent defense lawyers, judges, and law professors) believes that metadata can substantially increase the cost of discovery and mislead juries. For many forms of litigation (eg, class action), the Sedona Conference’s fears are valid; the diversity of electronically stored information and the complexities associated with operating e-document retention policies are real and can increase the cost of litigation. But some of the Conference’s fears are less grounded in reality. For example, although commercially available software can corrupt metadata, metadata is unlikely to mislead juries. The act of corrupting a fi le leaves metadata behind that will alert an IT professional that someone has tampered with an e-document (of course, retaining IT experts to review the integrity of an e-document’s metadata also drives up the costs of discovery and litigation). 

Yet, medical malpractice litigation is not class action litigation. Reviewing an EMR is unlikely to be substantially complicated by the addition of its metadata. Moreover, several legal reasons exist to encourage EMR metadata discovery. First, metadata is likely to play an important role in the authentication of the EMR. At trial, documents cannot be admitted into evidence unless they are properly authenticated. As EMR metadata is an audit trail of who has used the record, what changes were made, and when changes were made, metadata facilitates authentication. If an EMR is not produced with its metadata, a much more complex foundation must be laid. 

Finally, the issue of document credibility must be considered. When a paper medical record is admitted into evidence, the jury can see the actual document. By inspecting the document, the jury can identify alterations by the presence of erasure marks, diff erent color ink, and altered pagination. However, unless the jury receives an EMR complete with its application metadata, there is no way to identify such factors; depending on one’s viewpoint, this could be good or bad for a physician’s defense. The truth about EMR metadata is that depending on the facts of a case, one side or the other will want EMR metadata admitted into evidence: plaintiff s will move for the admission of EMR metadata when it damns the physicians; and physicians will move for the admission of EMR metadata when it is exculpatory. 

In many ways, the EMR is an Orwellian big brother. By generating metadata, the EMR quietly chronicles how physicians practice medicine. Did the doctor really look at a radiographic image? The EMR knows. How much time did the doctor spend reviewing a radiographic image or researching the PDR? Th e EMR knows. While the law is unsettled as to how much metadata is discoverable, there is good reason to believe that EMR metadata will be discoverable in medical malpractice litigation. Accordingly, for the foreseeable future, anyone using an EMR should assume that everything that happens in cyberspace is being recorded and behave accordingly. 

Dr. McLean is the CEO of Th ird Millennium Consultants LLC, located in Shawnee, KS, and is an attending surgeon in the Eastern Kansas VA Health Care System, in Leavenworth, KS.

Articles

Consider this hypothetical situation: A patient with new onset of a major depression is evaluated by a physician who has found no evidence of suicidal ideation.

Metadata: An Orwellian Big Brother within Electronic Medical Records

. Like any computer, an EMR generates metadata during its routine operation. This metadata is functionally an audit trail of how the computer was used. Anyone who uses an EMR needs to realize that every time they open a document (including patient notes, medication lists, and radiographic images) their “digital fi ngerprint” is left behind. This digital fingerprint, which can be traced back to the physician with as much certainty as a normal fingerprint, is actually easier to detect than a normal fi ngerprint. Unfortunately, few physicians using EMRs are aware of the potential treasure trove of information available in metadata and how it might be used against them.

Metadata comes in two forms: system and application. System metadata are marks automatically made on electronic documents by computers. Examples include computer markings as to when a document was signed (time-signature metadata) and by whom (identity metadata). Without system metadata, a computer cannot function properly. Unlike humans, a computer cannot actually remember anything. For example, when the “back key” of a Web browser is hit, to find the last website visited, the computer must consult its system metadata. In the hypothetical presented, analysis of EMR system metadata allowed the family to discover whether the doctor consulted a PDR and what medications the doctor reviewed.

In contrast, application metadata is generated by the computer user. Microsoft Word’s “track changes” feature is probably the best example of application metadata;when the feature is “on,” Word displays some of the application metadata associated with the program (the history of changes made to that document). The potential for application metadata to “un-erase” comments made in an EMR is potentially frightening. For example, if in the heat of the moment, a physician enters into the EMR an unprofessional comment concerning another doctor, examination of the EMR’s metadata might discover the comment, even though it was deleted. Fortunately, for technical reasons that are beyond the scope of this article, such application metadata may be stored only for a limited time.

The ways in which metadata can be used are limited only by the imagination. Th e following examples explain how metadata might be used to objectively measure a physician’s productivity and quality of care and how it might be used as evidence.

. Such data will provide employers with an estimate of how much time a physician actually spends with patients. Indeed, some software vendors currently off er products that can automatically perform time-and-motion studies on primary care physicians and psychiatrists.

EMR metadata can also be used to assess the quality of care provided. Because physicians leave behind digital fi ngerprints, it is possible to discover what information a physician reviewed. No longer can physicians write “wnl” (which lawyers usually translate as “we never looked”) into a patient’s chart and expect to get away with this minor deception. If a physician’s digital fi ngerprint is not on the laboratory e-fi le and the physician writes “wnl” in the patient’s chart, the doctor’s credibility will be substantially undermined. Not surprisingly, many third-party payors want access to EMR metadata—which will provide objective evidence as to whether they are receiving the quality of care they purchased.

. In this case, after a patient awoke paralyzed from a back operation, suspicion initially fell on the surgeon. However, when the plaintiff obtained metadata from the operative record demonstrating that the anesthesiologist’s postoperative note had been written just minutes after the operation began, and that a 90-minute gap existed in the monitoring record, the nature of the litigation changed. Faced with an awkward situation, the anesthesiologist settled.

 (a research and educational group composed of prominent defense lawyers, judges, and law professors) believes that metadata can substantially increase the cost of discovery and mislead juries. For many forms of litigation (eg, class action), the Sedona Conference’s fears are valid; the diversity of electronically stored information and the complexities associated with operating e-document retention policies are real and can increase the cost of litigation. But some of the Conference’s fears are less grounded in reality. For example, although commercially available software can corrupt metadata, metadata is unlikely to mislead juries. The act of corrupting a fi le leaves metadata behind that will alert an IT professional that someone has tampered with an e-document (of course, retaining IT experts to review the integrity of an e-document’s metadata also drives up the costs of discovery and litigation).

Yet, medical malpractice litigation is not class action litigation. Reviewing an EMR is unlikely to be substantially complicated by the addition of its metadata. Moreover, several legal reasons exist to encourage EMR metadata discovery. First, metadata is likely to play an important role in the authentication of the EMR. At trial, documents cannot be admitted into evidence unless they are properly authenticated. As EMR metadata is an audit trail of who has used the record, what changes were made, and when changes were made, metadata facilitates authentication. If an EMR is not produced with its metadata, a much more complex foundation must be laid.

Finally, the issue of document credibility must be considered. When a paper medical record is admitted into evidence, the jury can see the actual document. By inspecting the document, the jury can identify alterations by the presence of erasure marks, diff erent color ink, and altered pagination. However, unless the jury receives an EMR complete with its application metadata, there is no way to identify such factors; depending on one’s viewpoint, this could be good or bad for a physician’s defense. The truth about EMR metadata is that depending on the facts of a case, one side or the other will want EMR metadata admitted into evidence: plaintiff s will move for the admission of EMR metadata when it damns the physicians; and physicians will move for the admission of EMR metadata when it is exculpatory.

In many ways, the EMR is an Orwellian big brother. By generating metadata, the EMR quietly chronicles how physicians practice medicine. Did the doctor really look at a radiographic image? The EMR knows. How much time did the doctor spend reviewing a radiographic image or researching the PDR? Th e EMR knows. While the law is unsettled as to how much metadata is discoverable, there is good reason to believe that EMR metadata will be discoverable in medical malpractice litigation. Accordingly, for the foreseeable future, anyone using an EMR should assume that everything that happens in cyberspace is being recorded and behave accordingly.

Thomas R. McLean

Articles

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