Risk Management
Legal Experts: Immediate Access to Digital Records Crucial in LitigationHospitals should understand e-discovery before a lawsuit leaves them scrambling
Health care’s digital age may prove to be a boon for quality of care, but its initial stage is keeping risk managers and legal counsel up at night.
Under the amended Federal Rules of Civil Procedure, which governs how court cases are run, entities must be able to quickly disclose where potential relevant information exists and what they are doing to preserve it. The American Health Lawyers Association has tracked at least five health care-related lawsuits involving e-discovery—three in 2008 and two in 2007—including a 2007 case in which Keystone Health Plan Central Inc. was hit with $5 million in sanctions for taking three years to produce paper and electronic documents. According to Edward Shay, a partner with the Philadelphia firm Post & Schell and a member of AHLA’s health information technology practice group, these cases “suggest that health care entities involved in litigation will not be treated differently from any other entity” when it comes to e-discovery.
Legal experts recommend developing a comprehensive policy on electronically stored information, including a retention and destruction plan; and mapping IT systems to capture what types of data exist, where they reside and who controls them.
Arranging files with attention to their content can substantially lower the cost of producing data during discovery and strengthen an entity’s litigation position; conversely, an inability to produce electronic data quickly can result in sanctions and loss of credibility with a court. Worse, even inadvertent overwriting or deletion of data while a lawsuit is pending may constitute spoliation of evidence. Elisabeth Belmont, corporate counsel for MaineHealth and immediate past president of AHLA, says data maps should include all storage units, including servers, backup tapes, laptops and portable storage devices (including smartphones).
Belmont also cautions hospitals to pay attention to metadata that shows such things as who made or edited a file, or who merely accessed a record and when. “Not all plaintiff’s counsel realize yet how much metadata exists in electronic health records, computerized physician order entry systems and other information systems, but discovery demands are likely to increase significantly as this awareness grows,” Belmont says.
Most experts perceive a “readiness gap” among health care organizations with respect to e-discovery, but Intermountain Health Care in Salt Lake City is one outfit that’s ahead of the curve.
“We started [getting ready] well over a year ago because we could see the potential problems if we didn’t do it,” says Intermountain Senior Counsel Daniel Ditto. Intermountain assembled an interdisciplinary team, attended conferences on e-discovery, and studied the time and money it spent producing electronic data during litigation. Ditto believes the rules on e-discovery are ultimately reasonable, insofar as they try to “find a balance between the need of parties to obtain information and the cost of having that information.” Courts will not penalize entities for having destroyed evidence if they did so in accordance with a reasonable and well-established organizational policy, he notes.
Health care organizations that fail to prepare for e-discovery will feel “a tremendous strain” once a lawsuit hits because they’ll be forced to organize their data—a process that typically takes 10 months to a year—in just 30 or 60 days, Shay says. Moreover, he warns, liability insurers may refuse to pay that portion of their defense, arguing that preparation for e-discovery is not a case-specific activity.
This article 1st appeared in the October 2008 issue of HHN Magazine.
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