Difference between revisions of "E-Discovery, EHR and Medical Liability"

Revision as of 01:52, 31 January 2015

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.

Discovery

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. 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. Some states have also enacted amendments to address e-discovery. 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.

References

1. Vigoda Michael. e-Record, e-Liability: Addressing Medico-Legal Issues in Electronic Records. Journal of AHIMA 79, no. 10 (October 2008): 48-52.
2. AHIMA e-HIM Work Group on e-Discovery. New Electronic Discovery Civil Rule. Journal of AHIMA 77, no. 8 (September 2006): 68A-H.
3. Mangalmurti SS, Murtagh L, Mello MM. Medical Malpractice Liability in the Age of Electronic Health Records. N Engl J Med 363(21): 2060-2067.

Submitted by Kshama Daphtary