For hospitals, health systems, and digital health companies deploying ambient scribes and clinical decision-support tools, generative AI now produces far more than a finished note. Transcripts, prompts, confidence scores, and alternate recommendations pile up behind the scenes, and health systems must decide which of those artifacts become part of the legal medical record.

In a recent article by Healthcare IT News, the publication examined how AI-generated drafts, transcripts, and technical logs should be classified and retained. James (Jim) P. Flynn, Managing Director of Epstein Becker Green and counsel to health systems on health care litigation and regulatory compliance, and Alaap Shah, Member of the Firm at Epstein Becker Green and counsel to health care and digital health companies on AI governance and data privacy, discussed how organizations should draw that line.

Flynn approaches the boundary by asking whether an AI output materially informed or documented clinical decision-making. Supporting material such as prompts and confidence scores may have audit value without belonging beside the clinician's note, but he cautioned that over-retention creates its own exposure in litigation.

“The cleaner the clinical note, the stronger the foundation for clinical decision-making,” Flynn said. “Excess AI artifacts muddy that narrative.”

Shah recommends separating AI information into three categories: clinician-reviewed content that belongs in the record, advisory or draft content governed by retention policy, and system logs and confidence metrics that belong in technical governance files rather than the clinical note. He argued that accountability should anchor every retention decision.

“The medical record should be a clean statement of clinical reasoning and evidence,” Shah said. “The AI system record should be a separate repository showing that you managed the risk responsibly. That separation is critical.”

Get in Touch

To discuss how to structure AI governance and retention policies for ambient scribes and clinical decision-support tools, contact Jim Flynn at jflynn@ebglaw.com or Alaap Shah at abshah@ebglaw.com.

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