By: Andrew Bartholomew
Beyond the passage of “Obamacare” and last week’s historic Supreme Court decision, the healthcare industry has experienced unprecedented change in recent years, resulting from a host of new regulations, technology advancements and an accelerated move from paper to electronic medical records. These developments have not only impacted the way people receive and administer care, they’ve also contributed a bevy of new e-discovery challenges. The topic was covered on a recent Exterro webcast “Healthcare’s E-Discovery 9-1-1 Call: Preventing another e-discovery heart attack.” Presenters Joshua Cohen, senior partner at Garson DeCorato & Cohen and David Yerich, director of eDiscovery at UnitedHealth Group, examined a few of the specific challenges:
Migration to Electronic Data
Medical charting has always been a key element in quality healthcare and as a result the amount of records produced by medical providers is often quite staggering. Traditionally, these records were kept by hand and stored as paper documents. “Healthcare providers and institutions are now migrating to electronic health records to manage all of this information and these systems must be integrated and able to share information with other entities such as insurance companies,” said Cohen.
Yerich echoed Cohen’s remarks and added that a soon to be updated list of diagnostic codes to record medical procedures will have e-discovery implications as well. “This migration alone is going to significantly increase the number of diagnostic codes that are available,” said Yerich. “It is going to vastly increase the amount of data that has to be entered and then has to flow through the system.”
Adding to this challenge, Cohen said that in the last year, there has been a tremendous uptick in requests from plaintiffs’ attorneys and regulators for audit trails and other electronic information.
Duty to Preserve Ambiguity
The duty to preserve electronically stored information can be especially challenging in a healthcare setting because of the substantial gray area surrounding what constitutes a “reasonable anticipation” of litigation. Cohen offered the example of a patient requesting his or her medical records. “That happens all the time and it’s often not related to litigation,” said Cohen. “However, when you start adding layers to that such as if there had been a bad complication, there’s a patient death or a bad outcome, and shortly thereafter you get a request in for a copy of the patient’s records then that may start raising the suspicion that you may have a reasonable anticipation of litigation.” Cohen suggests the healthcare institutions come up with some sort of guidelines that help determine when it’s appropriate to start issuing legal holds.
Lack of Process
With respect to litigation in the healthcare industry, it’s not a matter of if, but when. According to Yerich, any event that occurs on a continual or frequent basis, such as e-discovery, should always be supported by a standardized process. Yet many organization take a haphazard approach to e-discovery. Yerich touted the importance of workflows, which help establish repeatability matter over matter, transparency into what’s going on and when and collaboration between the different business units involved in e-discovery activities (legal, IT, records management, etc.).
Electronic Medical Records Distortion
Electronic medical records (EMRs) were not designed with litigation in mind. Cohen says the inherent format of electronic medical record templates often leads to e-discovery challenges. “What the healthcare provider sees when they use an electronic medical record is a computer screen not what eventually gets printed out,” said Cohen. In other words, what a doctor sees on the screen may not be reflected in what ultimately gets produced to the opposing side. Cohen provided several examples where auto-propagation and cutting and pasting of medical notes led to something being entered incorrectly and then repeated throughout a record.
New Locations of Discoverable Data
Like all large organizations in the digital age, healthcare institutions are struggling with the rapid rise in sources of discoverable electronic data. Beyond managed data sources, such as patient data bases and EMR systems, legal teams must also be aware of data created or stored on laptops, USB thumb drives and even mobile phones.
Cloud storage has added yet another layer of complexity. Cohen said many of the medical clients he represents have started storing medical records in the cloud as opposed to on-premise servers, which can complicate the data retrieval process. Moreover, data is becoming far less centralized within healthcare facilities. Individual departments (radiology, etc.) produce their own sets of data which are frequently stored separately from the patient’s general electronic medical record information.
The speakers suggested data mapping as an effective way to identify and manage growing data volumes, especially when it resides in numerous new locations. “At the end of the day, you might find out that when it comes to your litigation profile there’s a few systems that are really important and it’s important that you understand how long they store data and how to get the data out,” Yerich said. Cohen added that audit trails are also essential because they create a chronological record of events and validate the authenticity of the electronic data that is produced to the other side.
Effectively Utilizing E-Discovery Technology
Yerich concluded the webcast by emphasizing the value of technology in enhancing an organization’s e-discovery process. “There are some really great tools on the market today on the technology side that will help guide you through this,” Yerich said. “You don’t have to create your own homegrown tools if you don’t want to.” The bottom line, Yerich and Cohen concluded, is that litigation is inevitable, especially in the healthcare field, so organizations much be proactive in planning for and investing in a repeatable and defensible e-discovery process.
Watch a full replay of Exterro’s webcast “Healthcare’s E-Discovery 911 Call: Preventing another e-discovery heart attack” here.