E-Discovery, EHR and Medical Liability
Electronic health records (EHRs) can offer physicians some degree of protection from medical malpractice. Conversely, EHRs can also expose physicians to medical liability. Not only do EHRs affect the likelihood of a lawsuit, EHRs can also affect the course of a lawsuit. Hospitals and physicians should understand how EHRs and other electronically stored information (ESI) may be used in litigation.
is part of the pre-trial litigation process during which each party requests relevant information and documents from the other side in an attempt to "discover" pertinent facts. Generally discovery devices include depositions, interrogatories, requests for admissions, requests to produce documents and requests to inspect property.
E-discovery or electronic-discovery
is the process of identifying, preserving, collecting, processing, reviewing and producing electronically stored information (ESI) for legal review. ESI includes information stored in the EHR, e-mails, hospital or physician web-sites, blogs, online transactions, word processing documents, electronically stored photos, and recorded messages. ESI also includes metadata. Unlike paper records where all information is displayed on the face of the document, there is more information in an EHR than what is generated in a print out. EHRs generate metadata or “data about data” which can serve as an audit trail.
“It was so much easier to produce a chart in the past. A handwritten chart was a finite medium and access to the information was limited to whoever was looking at it at a given time. If someone wanted a copy of the chart, it would be photocopied and turned over…EMRs have transformed health information into electronic code that is deliberately fluid for data sharing. Health information is no longer maintained in a one-dimensional format but instead is shared at many levels. Electronic medical data can be integrated with other information systems for billing, treatment, patient census, scheduling, insurance, pharmaceutical/prescription and other administrative reasons.” (4)
Healthcare providers should be educated about the presence, function and storage of metadata. ESI can be retrieved from a computer, voicemail system, smartphone, PDA, or any other electronic device.
In 2006, the Supreme Court amended the Federal Rules of Civil Procedure, reflecting changes in the discovery process governing the handling of ESI.
Summary Of The Federal Rules
• Rule 16: Pretrial Conference, the Meet and Confer rule, also is designed to address issues raised by difficulties in locating, retrieving, and providing discovery of electronically stored information in a timely manner; alerts the court to the possible need to address the handling of discovery of electronically stored information early in the litigation if such discovery is expected to occur
• Rule 26: General Provisions, Methods to Discover Additional Matter; need not provide ESI that is “not reasonably accessible”
• Rule 34: focused on discovery of ESI, to confirm that discovery of electronically stored information stands on equal footing with discovery of paper documents. Rule 34… is expansive and includes any type of information that is stored electronically…. such as e-mail…a party producing electronically stored information (must) translate it into a “reasonably usable form”…permits the requesting party to designate the form or forms in which it wants electronically stored information produced
• Rule 37: Safe Harbor Provision, protection against data loss; stipulates that sanctions cannot be imposed for loss of electronically stored information resulting from the routine, good faith operation of an electronic information system.(5)
Some states have also enacted amendments to address e-discovery. “To date (2013), “thirty-one states have adopted e-discovery amendments as part of their civil rules inspired in whole or in part by the provisions of the 2006 amendments1” “In so doing, these states seek to ‘retain the basic uniformity between state and federal practice that is a continuing goal of [many states]”(6) “Eight other states have adopted limited rules relating to e-discovery and ten states have not yet acted at all…(as of 2013)”(7)
These new rules are likely to affect the way medical malpractice cases are handled and it is imperative that hospitals and physicians familiarize themselves with these rules. In 2008, the American Health Lawyers Association declared that, “healthcare’s e-discovery honeymoon is over”, citing 5 recent cases that had been affected by e-discovery. The market place for e-discovery software is growing as is the demand for the new class of lawyers that deal with e-discovery. In its 2010 report, MarketScope for E-Discovery Software Product Vendors report, Gartner estimates that revenue in worldwide enterprise eDiscovery software was $ 808 million in 2008, with a projected annual growth rate of 21% to 2013. The costs of e-discovery can be prohibitive.
It has been recommended that hospitals and physicians take a proactive approach. Prior to selecting an EHR vendor and during implementation, physicians should collaborate with the vendor, information technology and legal experts to ensure that their medico-legal needs are addressed. Hospitals and physicians should know how their electronic health information is created, where it is stored, how it can be accessed, how it is backed up and how to respond to requests for production of ESI. This will help them identify and preserve the ESI in a timely manner and avoid potential sanctions and penalties. Policies and procedures should be developed to deal with the rules, regulations and laws governing electronic records management, and to respond to e-discovery requests for information.
Stages Of Process When An E-Discovery Request Is Received:
1. Identification 2. Preservation 3. Collection 4. Processing 5. Review 6. Production
“Zubulake v. UBS Warburg … famously held that “once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” (8)
With paper records, a complete copy can be made and filed away for future reference and the original copy can be kept locked and secure. In contrast, an EMR may be accessed from a variety of locations and once information is input it may automatically change related information (metadata) within the EMR, even information related to a prior date. Once litigation is expected or a subpoena is served, the record (including the metadata) must be “preserved” (i.e. no “spoliation”, which are any changes, additions, or deletions to the record or data). A "litigation hold" needs to promptly institute a suspension of the organization’s retention and destruction policies for documents that may be relevant to the case. This is supposed to occur when a lawsuit is either filed or “likely anticipated”. Key employees need to be notified of document preservation requirements. The process needs to be coordinated between all relevant departments (i.e. IT, HIM, legal, risk management…) Many staff in the IT department may be involved (e.g. CIO, application mangers, security and compliance staff, email managers, database and datacenter managers). All must have some understanding of the processes and technology involved and have expertise in their particular area.
- Vigoda Michael. e-Record, e-Liability: Addressing Medico-Legal Issues in Electronic Records. Journal of AHIMA 79, no. 10 (October 2008): 48-52.
- AHIMA e-HIM Work Group on e-Discovery. New Electronic Discovery Civil Rule. Journal of AHIMA 77, no. 8 (September 2006): 68A-H.
- Mangalmurti SS, Murtagh L, Mello MM. Medical Malpractice Liability in the Age of Electronic Health Records. N Engl J Med 363(21): 2060-2067.
- Keris, Matthew P. "Reducing Medical Malpractice E-Discovery Issues and Costs." The Legal Intelligencer (2012): n. pag. Web.
- "FEDERAL RULES OF CIVIL PROCEDURE." FEDERAL RULES OF CIVIL PROCEDURE. U.S. Government Printing Office, 1 Dec. 2011. Web. 12 Mar. 2015. <http://www.gpo.gov/fdsys/pkg/CPRT-112HPRT70815/html/CPRT-112HPRT70815.htm>.
- "AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE." FEDERAL RULES OF CIVIL PROCEDURE (2006): 1-60.Http://www.uscourts.gov/. Web. 12 Mar. 2015.
- "ABA Midyear 14 Document E-Discovery Rules, E-Discovery in the State Courts." - American Bar Association, 2014. Web. 13 Mar. 2015.
- Zubulake v. UBS Warburg , 220 F.R.D. 212, 218 (S.D. N.Y. 2003).
Submitted by Kshama Daphtary
Submitted/Edited by John Thomas