The November 2007 issue of Risk Review introduced the brave new world of electronic health records, including their various medical, legal and risk management benefits (as well as potential pitfalls to overcome). The January issue discussed how to ensure that electronic health records provide certain legal protections and are not used in such a manner which could actually increase medical legal risk.
This issue focuses on the new rules governing the discoverability in litigation of electronic health records (or, more accurately, electronic medical records since they will be assumed to meet the requirements discussed in the past two issues to be characterized as such).
An electronic medical record (EMR) constitutes a record in electronic medium which is completed in the ordinary course of business to reflect what occurred during a transaction which is central to that business, viz. the various aspects of the clinical encounter itself.
The New Electronic Discovery Rules
On April 13, 2006, the U.S. Supreme Court approved amendments to the Federal Rules of Civil Procedure aimed at the unique aspects of electronic discovery (e-discovery). These new rules took effect on December 1, 2006 and apply to cases in federal court, as opposed to state courts where most medical liability cases reside. However, New Jersey was one of the first states during 2007 to adopt e-discovery rules which mirror the federal rules as reported in the June 19, 2007 issue of the New Jersey Law Journal by Korin, JB, Quattrone, MS, Electronic Health Records Raise New Risk of Malpractice Liability: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1182194746807
The electronic information age has brought with it many changes regarding the gathering and use of electronic evidence in legal proceedings. The new rules related to e-discovery will dramatically affect how health care organizations manage their electronic data, and include changes that address characteristics distinguishing e-discovery from traditional paper discovery. E-discovery concerns the access, use, disclosure, preservation and handling of data, including e-mail and other computer-generated documents that are transmitted, stored, and backed-up electronically. In contrast to paper-based medical records, discovery of electronic records also extends to the following:
- Computer forensics (scientific methods that are employed to analyze sources of electronic data such as hard drives or servers to determine if evidence was accessed, altered, destroyed, or fabricated and/or to locate computer-generated evidence of which a layperson may be unaware)
· Searching, gathering, reviewing, analyzing, producing and using large amounts of relevant information in routine litigation (i.e. the equivalent to searching document storage facilities or warehouses, waste baskets, file cabinets, home offices and personal files for paper records)
· The focused search for electronically stored information relevant to the specific issues in a case such as cell phone or blackberry records and e-mail or instant messaging records (Rebelo, M. E-Discovery in Health Care Litigation; Physician’s News Digest: (http://www.physiciansnews.com/law/207rebelo.html).
In general, data loss or destruction, inappropriate corrections to the medical record, inaccurate data entry, unauthorized access and errors related to problems that arise during the transition to EMRs constitute potential liability issues. These concerns are not unique to EMRs—the same concerns exist with regard to paper medical records (Cf. Korin and Quattrone above at:
http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1182194746807.)
However, due to the intrinsic nature of electronic records, these same concerns may be even greater than with paper records.