Once Byten, Twice Shy: Preservation and Production of Electronic Healthcare Records

By Albert, Jennifer A. | The Review of Litigation, Spring 2013 | Go to article overview

Once Byten, Twice Shy: Preservation and Production of Electronic Healthcare Records


Albert, Jennifer A., The Review of Litigation


I. Introduction 396

II. The Electronic Health Record and EHR Systems 397

A. General Overview 397

B. Benefits of EHR Systems 398

III. Electronically Stored Information 400

A. A Brief Explanation of ESI 400

B. Metadata 400

IV. The 2006 Amendments Addressing ?-Disco very 402

A Rules 26(f) and 16(b): Counsel's Duty to Understand EHR Systems 403

B. Rule 26(b)(2)(B): Producing "Not Reasonably Accessible " ESI 404

C. Rule 34: The Form(s) of Production 405

V. Federal Court Impact on Electronic Discovery Practices 406

A. Production of Not Reasonably Accessible ESI and CostShifting Factors 406

B. Legal Hold Doctrine and the Duty to Preserve EHR Databases 409

C. Preservation Failures: The Circuit Split on Spoliation ..410

1. The Power to Sanction 411

2. Two Approaches to Spoliation 412

3. The Second Circuit: Spoliation Sanctions for Mere Negligence 413

4. The Fifth Circuit: Culpability Required for Spoliation Sanctions 414

VI. Accelerating the Trend Towards Electronic Records Systems 415

A. The HITECH Act 416

?. Strong Incentives to Adopt EHR Databases..........417

C. The 2015 Penalties..........417

VII. The Requirements and Capabilities for Meaningful Use of Electronic Health Record Systems..........418

A. Meaningful Use of Qualified EHR Databases..........419

B. Stage 2 Meaningful Use..........419

C. Stage 3 Meaningful Use..........420

VIII.State ?-Discovery Rules..........421

A. Texas Rule of Civil Procedure 196.4..........421

IX. Database Preservation - Designing an Effective Legal Hold for Electronic Health Records..........422

A. The Unique Nature of a Database..........423

B. How to Preserve an EHR Database for an Effective Legal Hold..........423

X. Database Production - Using the Federal Rules to Your Advantage..........424

XI. Federal Case Law and Healthcare Database Production..........426

XII. Conclusion..........429

I. Introduction

Beginning in 2015, healthcare entities face penalties if they fail to make meaningful use of qualified Electronic Health Record systems. The new mandate presents significant challenges for healthcare entities, which must now keep larger stores of electronically stored information. This Note will discuss the obligations of the meaningful use requirement and the benefit that EHR systems can provide.

The meaningful use requirement, in combination with the 2006 amendments to the Federal Rules of Civil Procedure, results in many new obligations for healthcare providers. Congress amended the Federal Rules of Civil Procedure in 2006 to address the proliferation of electronically stored information.1 Taken alone, the amendments add new obligations for electronically stored information during discovery. Fast-developing federal case law has grappled with preservation and production of electronically stored information under the recent amendments. The new obligations under the amendments impact not only healthcare entities, but also their lawyers.

The federal circuits are currently split regarding the extent of the duty to preserve and produce complex proprietary databases such as Electronic Health Record systems. As a result, healthcare providers that operate in multiple circuits should proceed with caution. While the potential privacy implications of the meaningful use requirement have been discussed elsewhere,2 little attention has been paid to how the regulations will affect the discovery process during litigation. This Note will explain the divergence among the circuits on the preservation and production of complex databases. Finally, it will offer suggestions on how healthcare litigators can comply with these new and complicated obligations.

II. The Electronic Health Record and EHR Systems

A. General Overview

According to the Centers for Medicare & Medicaid Services (CMS), an EHR is an "electronic version of a [patient's] medical history, that is maintained by the provider over time, and may include all of the key administrative clinical data relevant to that [person's] care under a particular provider, including demographics, progress notes, problems, medications, vital signs, past medical history, immunizations, laboratory data and radiology reports.

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