A lot of attention is paid to the medical and technological ramifications of the EHR. But not enough is devoted to the legal ones. That was the message at an AHIMA session Monday, "The Impact of the Electronic Health Record on Litigation and in the Courtroom."

The 2010 AHIMA Convention and Exhibit runs through Sept. 30 at the Gaylord Palms Resort and Convention Center in Orlando, Fla.

Michelle Dougherty, director of practice leadership at AHIMA, and Michael Slovis, an attorney with the Chicago law firm of Cunningham, Meyer & Vedrine, instructed attendees on the proper handling of medical information as EHRs explode – exacerbating a crucial "gap in knowledge" for lawyers defending malpractice suits as they do, said Slovis.

"We need new members on our team," Slovis said – noting that HIM and IT workers are key to making the EHR a useful tool for defense attorneys looking out for providers.

Defending docs accused of negligence depend on proving the care they provided was adequate and appropriate, and these days the EHR is inextricable in many cases from telling that story.

Dougherty, who helped identify architecture and standards to help ensure that "story" is properly recorded, archived, and accessed, noted that until recently "we were theorizing" how EHRs were used from a legal standpoint. And while it was "really hard to develop a health IT standard based on theory," now that EHR adoption is continuing apace, "we can use real-life use cases to build approach to standards."

Slovis helped define the issues surrounding civil litigation and e-discovery, describing what constitutes a legal medical record and what data should be included therein.

He spoke about what data a court can require a provider to produce, and how. And he offered suggestions on what format that data should be archived and delivered. "There's no right answer," he said. "A lot of it is system driven."

Dougherty, citing HL7 functionality standards, instructed attendees on expectations for EHR output and data retention, availability, and destruction – so-called records management and evidentiary support (RM-ES).

Both spoke of the challenges surrounding EHRs. Chief among them their state of flux.

"Clinically, the tools are great," said Slovis. "But the screens change. There's an inability to replicate the exact view that the clinician saw – it's different with each clinician and based on access. The EMR dynamic is making it almost impossible to recreate what the user saw." And significantly, "legal holds" – the processes organizations put in place to preserve relevant data when litigation may be anticipated – "do not exist" in EHRs.

Lawyers, for the most part, "have no idea" about much of this, Slovis said. It's up to health information management and IT professionals to "teach everyone."

Otherwise, that could spell trouble to doc defendants: "The information is there. But if it's not produced the right way, it appears to be missing" – and courts think it's being hidden.

Dougherty stressed the need for EHRs "to be able to preserve data over and beyond their retention schedule" and do it "in some type of unaltered state." And if alterations must be made to archived data for any reason? "Then you darn well want to have audit trails and mechanisms that show what changes have been made."

If the information is missing or altered, "it looks like the doctor was faulty or questioned judgment."

In addition, she added, it' is "very important to have good authentication and identification processes." Allowing multiple people to have access and share passwords means the credibility of clinical data that could potentially be exculpatory "is nil."

Despite the advances they've heralded for care and efficiency, electronic health records aren't always reliable and can be far from foolproof when it comes to e-discovery.

Still, said Dougherty, "the EHR should not be a litigation nightmare."