Academic journal article Journal of Law and Health

The Federal Rules of Civil Procedure, Electronic Health Records, and the Challenge of Electronic Discovery

Academic journal article Journal of Law and Health

The Federal Rules of Civil Procedure, Electronic Health Records, and the Challenge of Electronic Discovery

Article excerpt

I. INTRODUCTION II. THE WORLD OF DISCOVERY III. SPOLIATION IV. ZUBULAKE V. UBSWARBURG, L.L.C. V. UPDATING THE FEDERAL RULES OF CIVIL PROCEDURE VI. "MEET AND CONFER" REQUIREMENT UNDER RULE 26(F) VII. KNOWN OR SHOULD HAVE KNOWN STANDARD VIII. PRODUCTION OF ELECTRONIC INFORMATION IX. SANCTIONS FOR SPOLIATION X. CONCLUSION 

[E]lectronic discovery is suddenly upon us. It became ubiquitous and essential very quickly. Although intuitively we think of the ability to gather, retrieve, and search vast amounts of information remotely and electronically as the source of great savings in time, effort, and money, so far the reverse has proven true. Electronic discovery is more expensive, more time-consuming, more difficult, and more anxiety producing than paper discovery. (1)

I. INTRODUCTION

Picture the not so distant future of healthcare:

Mary, a forty-two year old mother of three, was having chest pain. Her physician ordered a chest x-ray. He saw a "hazy area," and ordered a Computerized Tomography (CT) scan of her chest. The procedure was completed with no mention of any abnormality. A year later, Mary went back to her physician because she found a lump in her breast. She was diagnosed with cancer that had spread to her lungs. After several months of aggressive, but unsuccessful treatment, Mary was moved to hospice and died. Her husband hired an attorney who requested all medical records and all diagnostic images, including shadow or unused CT exam slices, as well as audit trails from all systems that housed Mary's electronic records, including audits showing which practitioners reviewed her CT scan and results.

Jim worked at the local plant for forty-two years. Jim was a meat and potatoes guy, who had a sedentary lifestyle and was overweight. Jim started having chest pain and was taken to the emergency room, where the doctors there found that his heart was enlarged. He was taken to surgery for a cardiac catheterization and placement of a stent. After the procedure, his heartbeat was irregular. Because of this, he was admitted to the hospital again. He was placed in the cardiac unit with continuous telemetry monitoring so that his doctors and nurses could more easily monitor his heart rhythm at a central desk. In the middle of one night, a Code Blue is called on Jim, because his heart had stopped. Despite the quick work of the doctors and nurses, Jim did not survive. Six months later, an attorney representing Jim's family requested his medical records including all of the continuous monitoring data for the time that Jim was in the cardiac unit. The attorney also requests all of the images from the catheterization lab and the time sheets of all staff.

Rita was an eighty-three year old mother of two, grandmother of four, and great grandmother of one. Rita had been a widow for years, and had continued to live on her own. She was active and in reasonably good health. One day she noticed she had shortness of breath and went to see her doctor. After taking a chest x-ray, he diagnosed her with pneumonia. She was admitted to the hospital for antibiotic therapy. Because of Rita's age, diagnoses, and medications, she was considered "high risk" for falls. Accordingly, special precautions had to be taken. Her daughter talked with the nurses and physician and made sure Rita was comfortable. Later that night, Rita got up to go to the bathroom. On her way back to bed she tripped and fell, fracturing her hip. For the next six months Rita was confined to a wheelchair. She had move to an extended care facility. Rita's family sued. Their attorney requested Rita's entire medical record, the hospital's policy on "high risk" falls, an audit of her bed alarm, an audit of all nurse calls for the floor, and any instructions given to patients and families regarding falls.

While these stories are all hypothetical, similar accidents happen in hospitals on a routine basis, some of which are preventable. …

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