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Facts found within the electronic medical record (EMR) and electronic health record (EHR), or missing from either source, can strengthen or weaken a medicolegal case.  Having an understanding of the EMR and EHR is crucial to the discovery process.   In this blog, I’ll be addressing the differences between the EMR and EHR.  I will also share EMR and EHR elements to consider for discovery. 

Differences Between the EMR and EHR: The EMR is an electronic record of health-related information on an individual that can be gathered, stored, managed, and consulted by authorized clinicians and staff within one healthcare organization.  The EHR is also an electronic record of health-related information on an individual, however, it must conform to nationally recognized interoperability standards.  The EHR can be created, managed, and consulted by authorized clinicians and staff across more than one healthcare organization (McBride et al., 2019).

Discovery: Discovery involves procedures for obtaining information (admissible to trial) from other parties, and witnesses prior to trial. 

Objective: The purpose of discovery is to get the facts, narrow down the issues of the case, identify the strengths and weaknesses of the case, plan a trial strategy, or negotiate a settlement. 

Having someone knowledgeable about the EMR and EHR systems on the legal team proves to be a valuable approach to success.  The reason for this is that there are many elements of the EMR and EHR to consider in the process of discovery. McBride et al., (2019) references that there are unintended consequences of missing the patients story secondary to “data noise.” These unintended consequences include patient morbidity, poor outcomes, and even death.  The problem is that there is so much EMR/EHR data.  Professionals need to know where to find the needed (or missing) information in the EMR and EHR, both within clinical and legal practice.    

Elements of the EMR and EHR to Consider for Discovery (including, but not limited to:)

  • Name of EMR/EHR, EMR/EHR version, vendor representative contact, technician support service member contact
  • Each component part, section, sub-section of the systems
  • When the EMR/EHR system was originally implemented and when any upgrades were installed
  • The programs capabilities and limitations, how and where entries are made, who can make entries, how dates and times are entered, who has access to the EMR/EHR
  • Does the EMR have pre-set standard responses (E.g., automatic times for medication administration), are templates used for the pre-set standard responses, number of templates created or used to create the EMR
  • Are electronic signatures (e-signatures) used,  if so which health care providers (HCPs) are assigned and use e-signatures, do medical and nursing staff share signature blocks, does the facility and/or provider have a policy specific to the use of signature blocks and passwords
  • Is there a requirement to verify entries of unlicensed staff, if so, which entries must be verified
  • Is there a policy specific to making corrections to the EMR/EHR
  • Is the EMR, or section of the EMR printed, is so when (E.g., daily, or at the end of admission)
  • How is the EMR/EHR secured, who is responsible for security
  • Downtime policies (precautions to secure the EMR/EHR, as well as policies specific to documentation)

P.S. Comment and share how the presence, or absence of specific documentation either bolstered or weakened a recent case.

P.P.S. Comment and share if strong knowledge of the EMR/EHR system was able to better support your case.


McBride S., & Tietze M. (2019). Nursing informatics for the advanced practice nurse. Patient safety, quality, outcomes, and interprofessionalism. (2nd ed.) Springer Publishing Company.