Trial Magazine

This is an excerpt from Dropping the Digital Anchor: Preparing and Presenting Your Case with Technology. For more tips on using technology to successfully prep, try, and settle cases, order your copy here.

As a medical malpractice attorney, I frequently make advance “mental travels” to find the hidden markings within the electronic medical record. By thinking it out in advance, I can make intelligent decisions about the use of my time. Many cases do not need the time or expense of microscopic investigation. But, by knowing what is available, a discovery request may lead to a piece of information that can assist in proving your case. Try to draw the path of potential data. Visualize the process of information to realize what to request in production. For example:

Erica goes to her gym. As she enters, she swipes her membership card to unlock the door. At around the same time, a truck driver is getting tired after driving for the last 10 hours and decides to get a cup of coffee at his usual coffee chain. He uses his phone’s loyalty app to pay for a large black cup of coffee. When he leaves the store, his GPS recalculates to show him a faster route to his destination. He follows its suggestion.

After Erica’s workout, she enters her car and heads home. The two vehicles approach the cross-section of their traveled roads. The driver of the semi-truck takes a swig of his coffee and doesn’t see the stop sign on his roadway before the intersection. Instead of stopping, he continues and enters the intersection. The truck is equipped with a black box that records data about the truck’s actions. Unfortunately for Erica, the truck rams into her sedan.

A witness immediately grabs his cell phone and calls the police. The police system records the 911 call. The conversation is electronically recorded with details about timing, locations, length of call, and the audio date. Meanwhile, as Erica begins to realize what just occurred, she hears a voice asking if she is OK. The voice is coming from her OnStar system. The OnStar representative advises that they have contacted the police. OnStar sends a notification to the local dispatch.

The police dispatcher enters information into the dispatch computer system creating a caller-assisted dispatch report (CAD). A patrol officer is notified and enters his response into his patrol vehicle’s onboard computer. He activates the car’s overhead lights. As the rotating lights signal to the world, the vehicle’s electronic data is recording their use in the motor vehicle data recording system (MVR). Additionally, the system records the amount of time it takes him to respond to the call, the speed he traveled, and when he activated the sirens. The dashboard video records his travel and the scene as he arrives.

The speed, geographic location, radio dispatch information, and additional data etched within the vehicle’s MVR are preserved to be exported upon return to the station. At the scene, the officer’s body cam begins recording video and audio. It records conversations he is having with the parties to the crash and nearby witnesses. While they are interviewed, he does not enter all the statements or witnesses’ contact information into the electronic police report.

While at the scene, dispatch also sends notification to emergency medical services. Their vehicle is similarly equipped with a monitor recording device. However, their device allows for the electronic recording of vital signs, medication, and incident information. The EMS responders enter their identifications and arrival times into the electronic response record.

The patient, Erica, is eventually placed on a transfer board and moved into the emergency vehicle, which begins its travel to the nearest hospital. On arrival, EMS prints and hands to the receiving nurse their EMS report. The report is dropped into a bin to be scanned into the ER module within the hospital’s electronic medical record (EMR) system. The patient’s arrival time is recorded. A triage nurse collects and enters pertinent information and vital signs into the system. The patient is complaining of severe pain. An RN is assigned to the patient. The nurse takes the patient to a room. She enters her user ID into the bedside computer and logs her assessment of the patient into the hospital chart.

The nurse determines that pain medication is necessary. She calls over a resident who agrees. He logs his user ID into the computer and enters an order into the system. An automatic allergy warning pops onto the screen. The resident sees the warning and clicks to ignore the warning. The order is transferred to the pharmacy module for review by a pharmacist. The pharmacist logs into the system and approves the medication request. The nurse walks to the room where the medications are kept. She finds the correct medication, walks over to the medication tracking system, enters her user ID, and scans the barcode on the container. The computer logs the information and verifies that an order was placed for the medication.

She returns to the patient, scans the barcode again, and enters that she delivered the medication into the system. Over the next half hour, the patient remains in significant pain. The nurse decides it is time to notify the ER physician. The ER doctor had briefly stepped out of the department to get a quick snack at the hospital cafeteria. While there, she used her loyalty card to purchase a protein bar. The nurse figures the best way to contact the physician is by text message. The ER physician sees the text and quickly responds on her phone.

A few minutes later, the physician swipes her ID card to access the emergency department. At the nurse’s station, she enters her user ID and accesses the EMR system. She navigates the chart. The patient’s vitals were being collected by a bedside monitor that collects readings, logs data and activity, and sends the information over the hospital Wi-Fi network to the monitoring station. There, the monitoring nurse selects “record” on the monitoring module every 15 minutes. The system truncates the data to the second of each recording. That snapshot of time is then transmitted and recorded into the ER record.

After reviewing the chart, the physician enters the patient’s room. While looking at the patient, she takes notes on her tablet. Once the evaluation is completed, she picks up the phone and dictates her assessment. The audio dictation is recorded. The dictation module takes the audio file and places it into the transcriptionist’s work folder.

The physician logs back into the EMR system. Once inside, she clicks on the order tab. A verification window pops up requesting that she cosign the resident’s previous order for pain medication. The physician clicks the signature button to close the popup. Next, she enters a new order for an MRI.

The new order electronically travels to the EMR’s radiology module. Once in the module, a task is created and sent to PACS (Picture Archiving and Communication System) for processing. A technician receives an alert. The tech calls the emergency department and indicates that the patient can be brought to the radiology department. The nurse enters her user ID into the EMR, enters a note, and records the departure time for the transfer of the patient.

Once the patient arrives in the radiology area, the arrival time is noted in the radiology department’s module. The patient is placed into the room holding the MRI machine. The technician uses the machine to collect images. The machine’s software updates its action log to record the time it is used and number of images collected. The machine adds information to the images about the time collected, user ID of the technician, quality of the images, version of the machine’s software, and other relevant DICOM (Digital Imaging and Communications in Medicine) tags and metadata.

The imaging information collected by the MRI is sent through an interface engine from the machine to PACS. There, the images become reviewable by the radiologist. The system notifies the radiologist through an alert that the images are waiting for review. Next, the radiologist, who is at his house, logs into the hospital system through an online portal. From there, he accesses the PACS system and the images. The system makes a viewing log of the activity taken. While examining the images, he takes measurements, circles information, and enters other annotations into the layers of the DICOM images.

The radiologist dictates his findings into the hospital’s digital dictation system. The program translates the dictation and automatically incorporates the dictations into the facility’s form radiology report. The report is placed into a word processing application for the radiologist’s review. He reviews the file and makes a few edits. Next, he adds his digital signature to the report, and it is finalized. An audit trail is created recording the times and activities.

Continue this data visualization exercise throughout the patient’s treatment. By picturing the different vessels of data collection, it is easier to understand what evidence may be generated and maintained. Whether it is relevant to the matter will be a decision for you. But if you never suspect, then you will never inspect, and you will never know what exists.

This article contains an adapted excerpt from Dropping the Digital Anchor: Preparing and Presenting Your Case with Technology by Jonathan H. Lomurro (AAJ Press 2021), justice.org/digitalanchor. Copyright © 2020 American Association for Justice and Jonathan H. Lomurro.