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+-----------------------------------------------------------------------+
| **E-Discovery: Preparing for the Coming Rise in Electronic Discovery  |
| Requests**                                                            |
|                                                                       |
| *by Chris Dimick*                                                     |
|                                                                       |
| *Changes to federal discovery rules will have lawyers searching for   |
| newly discoverable electronic data and HIM professionals digging      |
| deeper into their computer systems.*                                  |
|                                                                       |
| Options had dried up for the 58-year-old man. Previous surgery and    |
| radiation therapy had failed to eradicate his brain tumor, so it was  |
| back to the operating table at the University of Miami/Jackson        |
| Medical Center in December 2002.                                      |
|                                                                       |
| For seven hours, Miami doctors worked on the man. But when he awoke,  |
| a tragic but possible complication of the surgery manifested. The man |
| was rendered a quadriplegic.                                          |
|                                                                       |
| Nine months later, a malpractice lawsuit was filed against the        |
| hospital, with the 58-year-old man's attorneys initially focusing on  |
| his surgeon's competency. But after an electronic discovery (or       |
| e-discovery) request revealed flaws in the surgery's electronic       |
| anesthesia record, the focus of the lawsuit shifted.                  |
|                                                                       |
| In addition to finding more than 90 minutes of undocumented vital     |
| signs in the record, the plaintiff's attorneys also found that the    |
| attending anesthesiologist recorded his attendance at the entire      |
| surgery only minutes after the seven-hour procedure began. In other   |
| words, the anesthesiologist stated he attended the complete surgery   |
| before the surgery was finished.                                      |
|                                                                       |
| This fact was found because e-discovery gave lawyers access deep into |
| the case's electronic records. In the data, they found a hidden       |
| electronic time stamp attached to the anesthesia record---a standard  |
| function of the system.                                               |
|                                                                       |
| Even though the anesthesiologist did stay for the entire surgery, and |
| even though the data flaws most likely did not contribute to the      |
| patient's complications, plaintiff attorneys knew they could use the  |
| errors in the record-keeping system to discredit the competency of    |
| the anesthesiologist.                                                 |
|                                                                       |
| The plaintiff lawyers never got the chance to present the data in     |
| court. Seeing an uphill battle, the hospital's lawyers settled the    |
| lawsuit.                                                              |
|                                                                       |
| This type of discovery would never have been possible with paper      |
| records. Metadata such as time stamps---data about the data---are an  |
| example of unique electronic information waiting to be obtained with  |
| an e-discovery request.                                               |
|                                                                       |
| This development should interest more than medical lawyers. It has    |
| implications for HIM professionals who, as managers of their          |
| organizations' medical records, will be required to process           |
| e-discovery requests.                                                 |
|                                                                       |
| **What's Discoverable Now?**                                          |
|                                                                       |
| With an increasing number of healthcare organizations moving to       |
| electronic health record (EHR) systems, healthcare lawyers and HIM    |
| experts alike predict the number of e-discovery requests to skyrocket |
| in the coming years.                                                  |
|                                                                       |
| Recent modifications to the Federal Rules of Civil Procedure (FRCP),  |
| which govern the process for civil lawsuits filed in US district      |
| courts, will only make e-discovery requests more frequent. The        |
| modifications mark a milestone in how discovery will be conducted     |
| regarding the disclosure of electronic records, and they mark a shift |
| in what HIM professionals need to know about their organizations'     |
| electronic record systems.                                            |
|                                                                       |
| The recent FRCP changes apply only to federal courts, but many        |
| attorneys feel they will trickle down to state and local courts soon. |
| This has HIM professionals wondering just what in their systems is    |
| now discoverable.                                                     |
|                                                                       |
| "It may not even be an electronic record, it may be other information |
| like e-mail, voice files, instant messages, Blackberry                |
| information---anything relevant to a case is potentially              |
| discoverable, paper or electronic," says Kim Baldwin-Stried, MBA, MJ, |
| RHIA, CPHQ, an independent HIM consultant based in Highland Park, IL. |
|                                                                       |
| A wealth of digital information can accumulate about a patient that   |
| is housed outside an organization's legal medical record. Attorneys   |
| in search of additional information pertinent to a lawsuit may view   |
| this data as digital Easter eggs waiting to be discovered.            |
|                                                                       |
| **Metadata---The Data about the Data**                                |
|                                                                       |
| Among those Easter eggs are metadata. Metadata are getting attention  |
| from lawyers and HIM professionals alike for their sturdy             |
| representation of time in court cases.                                |
|                                                                       |
| In both paper and electronic systems, entries in the record document  |
| when an event took place. But metadata capture something that a paper |
| document can't: the time that the entries themselves were made,       |
| explains Michael Vigoda, MD, MBA.                                     |
|                                                                       |
| Vigoda, director of the Center for Informatics and Perioperative      |
| Management in the Department of Anesthesia at the University of       |
| Miami/Jackson Medical Center in Miami, FL, authored a case report     |
| detailing the lawsuit involving the anesthesiologist. As in that      |
| case, metadata can serve as an "expert witness" on when documented    |
| events actually occurred.                                             |
|                                                                       |
| Metadata do much more than capture time. They can show when a         |
| document was accessed, who looked at it, and if it was altered from   |
| its native format---things that could prove relevant in a court case, |
| according to Marilyn Lamar, a health IT attorney based in Oakbrook,   |
| IL.                                                                   |
|                                                                       |
| In establishing the facts of a case, metadata thus also tell a lot    |
| about a record's integrity and its subsequent reliability as          |
| evidence.                                                             |
|                                                                       |
| For this reason, e-discovery requests for metadata will increase with |
| time, says Mark Mattioli, a healthcare attorney at Post and Schell,   |
| PC, based in Philadelphia. Many in the healthcare field are not aware |
| that metadata are available for e-discovery, he says. "I think what   |
| is going to be a real sea change for a lot of hospital clients is     |
| their understanding that that kind of information is discoverable."   |
|                                                                       |
| Knowing what sits behind a document and how to get at that            |
| information is important in responding to a metadata e-discovery      |
| request. HIM professionals will need to learn how to access metadata  |
| before the first request for information is submitted, Mattioli says. |
|                                                                       |
| **Running the Numbers**                                               |
|                                                                       |
| Newly discoverable electronic information will not just come from     |
| metadata or other hidden files. Access to information in electronic   |
| form gives attorneys the ability to search large groups of files in   |
| order to extract statistical data that could be used in court,        |
| Mattioli says.                                                        |
|                                                                       |
| Manually searching through thousands of documents to find systemwide  |
| trends was too time consuming and expensive to be common in the past. |
| But today, Mattioli notes, a computer program could scan hundreds of  |
| thousands of medical documents in seconds, producing legally relevant |
| information.                                                          |
|                                                                       |
| "You couldn't sit there with two million pieces of individual data,   |
| look at it, and say, 'Hey, hospitals X, Y, and Z seem to be falling   |
| out with this particular diagnosis code," Mattioli says. "But that    |
| can be done with electronic data."                                    |
|                                                                       |
| Like the use of metadata, the manipulation of data through            |
| e-discovery will also become more prominent with time.                |
|                                                                       |
| **Prompting for Prompts and Alerts?**                                 |
|                                                                       |
| Questions remain whether prompts and alerts generated by clinical     |
| decision support systems will produce litigious information, either   |
| provided as part of an organization's legal record or obtained        |
| through subsequent e-discovery.                                       |
|                                                                       |
| It is possible, however, that such systems could be searched to       |
| retrieve information on how a practitioner responded to a medical     |
| prompt or alert, such as a treatment plan suggested by prescribing    |
| software. This information could hold weight in a lawsuit if it shows |
| whether a physician regarded or dismissed medical advice.             |
|                                                                       |
| The technology is in its infancy, and it might be some time before    |
| such information sways court cases, says Ed Shay, an attorney at Post |
| and Schell and member of the American Health Lawyers Association.     |
| "The key question with prompts and alerts relates to the              |
| functionality of the EHR, whether it tracks how a physician responds  |
| to a given alert."                                                    |
|                                                                       |
| However, since some prompt and alert systems have been criticized by  |
| physicians as too sensitive, it is unclear if current information     |
| would be relevant in court, according to Shay. Clinical decision      |
| support systems will likely get better with time, and they may become |
| regarded among physicians as a standard in real-time practice. That   |
| is when their use in lawsuits might increase.                         |
|                                                                       |
| Although case law will most likely define the future role of prompts  |
| and alerts in litigation, for now HIM professionals and their         |
| organizations should develop policies regarding if, when, and how     |
| they store the information.                                           |
|                                                                       |
| "I would go back to the information management plan, deciding what    |
| will be defined as the legal EHR for external release,"               |
| Baldwin-Stried says. "Have legal counsel develop a policy about       |
| prompts. It is not necessarily going to protect \[the organization\], |
| but it's basically saying, 'This is how we view decision support.'    |
| Organizational policy and procedure should provide some overriding    |
| guidance on that."                                                    |
|                                                                       |
| **E-discovery and HIM Professionals**                                 |
|                                                                       |
| While discoverable information will evolve with the creation of more  |
| complex electronic record systems, the most advanced system means     |
| nothing to the e-discovery process if there aren't people who know    |
| how to store, manage, and access the information.                     |
|                                                                       |
| That is where HIM professionals come in. Since e-discovery requests   |
| will likely fall upon the shoulders of HIM and IT professionals,      |
| experts say those in the industry should realize that there is much   |
| to be learned about processing an e-discovery request.                |
| "\[E-discovery\] is not your father's discovery," Shay says. "This is |
| much more complicated."                                               |
|                                                                       |
| The standards for what exactly is discoverable and what electronic    |
| documents and information need to be saved as part of the record are  |
| still being developed. But that is no excuse for an HIM professional  |
| to sit back and see where the future takes the e-discovery process,   |
| stresses Baldwin-Stried.                                              |
|                                                                       |
| "We have to look at ourselves as conductors of an orchestra \[and\]   |
| know how information flows within the organization, both internally   |
| and externally," she says. "It is going to require a very             |
| collaborative relationship with IT and working with attorneys in the  |
| culling, synthesizing, and processing of information in discovery."   |
|                                                                       |
| The frequency and reach of e-discovery requests in the future may     |
| surprise some HIM professionals, Shay says. "Healthcare providers,    |
| because they haven't had a lot of experience with e-discovery, might  |
| underestimate the power of e-discovery versus discovery of paper      |
| records."                                                             |
|                                                                       |
| The changes in the FRCP came from the increasing volume of records    |
| being stored electronically in all business fields. "The rules in and |
| of themselves have not changed all that much, in terms of whether     |
| electronic health information is discoverable or not discoverable,"   |
| Mattioli says. "What has changed, and what the new federal rules      |
| really require, is that now HIM professionals need to think           |
| proactively about those issues."                                      |
|                                                                       |
| That is why Baldwin-Stried recommends that HIM professionals          |
| understand the organization's entire record system, which will help   |
| them better manage information.                                       |
|                                                                       |
| The FRCP changes have mainly affected cases unrelated to healthcare,  |
| but that will soon change. "There haven't been really many cases      |
| where electronic medical records have been at the forefront           |
| discussing what is discoverable there," Mattioli says. "But it's      |
| certainly coming; it just hasn't been litigated yet. I see it as      |
| being a major issue."                                                 |
|                                                                       |
| As attorneys become more educated on the new rules, the number of     |
| e-discovery requests will rise, predicts Baldwin-Stried. "What the    |
| FRCP changes have done is made electronic information equally as      |
| discoverable as paper records. That is key," she says. "There is      |
| going to be a lot more sampling and testing in these systems."        |
|                                                                       |
| "Attorneys," she says, "will become much more savvy about             |
| e-discovery."                                                         |
|                                                                       |
| HIM professionals will have to learn right alongside them. "This is   |
| going to be a way of life," Baldwin-Stried says. "HIM professionals   |
| have to understand \[that\] not only are we processing the data now,  |
| we are culling, preserving, retaining, and communicating about our    |
| systems. E-discovery is just part of our field's evolution."          |
|                                                                       |
| +------------------------------------------------------------------+  |
| | **Preparing for E-Discovery**                                    |  |
| |                                                                  |  |
| | There is no guarantee that HIM professionals will have to        |  |
| | process an e-discovery request tomorrow. But they will one day.  |  |
| | HIM experts suggest several steps that can be taken at even the  |  |
| | smallest facility in order to prepare for a possible request.    |  |
| |                                                                  |  |
| | Knowing how to respond to an e-discovery request doesn't just    |  |
| | make HIM professionals better prepared in the event of           |  |
| | litigation. Learning the ins and outs of the organization's      |  |
| | electronic record system translates into better records          |  |
| | management in general.                                           |  |
| |                                                                  |  |
| | **Get to Know Your System, Even Better**                         |  |
| |                                                                  |  |
| | Organizations will have to consider how they release information |  |
| | from multiple electronic systems, says Sandra Nunn, MA, RHIA,    |  |
| | CHP, enterprise records manager at Presbyterian Healthcare       |  |
| | Services in Albuquerque, NM.                                     |  |
| |                                                                  |  |
| | The FRCP changes raise the stakes for HIM professionals who      |  |
| | still need to learn their electronic systems. Knowing how to     |  |
| | access certain electronic information could be a requirement in  |  |
| | order to aid both a plaintiff and the healthcare organization's  |  |
| | lawyers in a legal case.                                         |  |
| |                                                                  |  |
| | "Some of the new rules require that before we even get into      |  |
| | litigation that we have an understanding as to where our records |  |
| | are stored, what's stored, what's accessible, and what isn't     |  |
| | accessible," says Mattioli. "This puts really a whole new spin   |  |
| | on the way we have conducted discovery in the past."             |  |
| |                                                                  |  |
| | Dusting off an organization's information management plan is a   |  |
| | good start in preparing for e-discovery. Although HIM            |  |
| | professionals have always known what clinical departments have   |  |
| | fed copies into the legal health record, they now have to learn  |  |
| | just what systems are used by those different departments, Nunn  |  |
| | says.                                                            |  |
| |                                                                  |  |
| | "You have to know how those systems operate \[and\] who is the   |  |
| | owner of that system," she says. "HIM people are going to be     |  |
| | less department-centric and part of a larger group of people.    |  |
| | They will develop a greater organizational awareness."           |  |
| |                                                                  |  |
| | **Have a Plan**                                                  |  |
| |                                                                  |  |
| | The best way to begin preparing for an e-discovery request is to |  |
| | assume that the task will not be easy.                           |  |
| |                                                                  |  |
| | "There is a freight train coming toward some in HIM," says       |  |
| | Lamar. "The records these electronic systems are generating will |  |
| | be vast---a lot of new information for people to search through  |  |
| | and manage."                                                     |  |
| |                                                                  |  |
| | Developing an overall records management plan will prepare an    |  |
| | organization for any request for information, Nunn says.         |  |
| | However, she believes that many organizations are not ready for  |  |
| | an e-discovery request.                                          |  |
| |                                                                  |  |
| | People imagine an e-discovery request will require them to       |  |
| | produce information from one or two systems, she says. In        |  |
| | reality, it may involve many systems.                            |  |
| |                                                                  |  |
| | It is unrealistic for the courts to expect an EHR to store every |  |
| | piece of electronically generated information---every e-mail,    |  |
| | every clinical prompt. Therefore, organizations must establish   |  |
| | specific guidelines for the retention and destruction of the     |  |
| | electronic data they handle. Knowing how to enact a legal hold   |  |
| | on electronic data is just one lesson to learn before any        |  |
| | lawsuit or discovery request is presented.                       |  |
| |                                                                  |  |
| | Enacting strict deletion policies protects an organization       |  |
| | during a discovery process because it can show a judge when and  |  |
| | why certain documents were retained or destroyed as part of      |  |
| | routine practice. If a legal hold is ordered and some records    |  |
| | vital to a lawsuit are destroyed, a judge could find the         |  |
| | organization liable and enforce steep sanctions.                 |  |
| |                                                                  |  |
| | "You have to establish good-faith operational procedures," says  |  |
| | Baldwin Stried. "When we are talking about e-discovery, the      |  |
| | courts don't expect you to be perfect and maintain everything,   |  |
| | but you do need to define your procedures so you can prove you   |  |
| | did what you needed to do in good faith."                        |  |
| |                                                                  |  |
| | Enacting a legal hold can be a challenge in electronic systems.  |  |
| | "In the paper world, it used to be with legal holds, 'Okay, here |  |
| | is the legal file, let's put the paper chart in there, and       |  |
| | that's it---freeze it,'" Nunn says. "Now you have to figure out  |  |
| | how you are going to put that hold on an electronic system. That |  |
| | is not a common thing for IT people. So HIM people are going to  |  |
| | have to work with them to find out how we are going to freeze a  |  |
| | whole set of information so that it doesn't go to automatic      |  |
| | destruction."                                                    |  |
| |                                                                  |  |
| | **Talk It Over**                                                 |  |
| |                                                                  |  |
| | Learning what is contained in a system and what could            |  |
| | potentially be requested is important in preparing for           |  |
| | e-discovery.                                                     |  |
| |                                                                  |  |
| | Attorneys will ask for data but usually can't give guidance on   |  |
| | how they are to be obtained. The organization must establish     |  |
| | that on its own.                                                 |  |
| |                                                                  |  |
| | "Understand what types of data are stored, understand your       |  |
| | policies regarding the destruction of data, understand what you  |  |
| | need to do if you receive a litigation hold letter asking to     |  |
| | stop deleting data," Mattioli advises.                           |  |
| |                                                                  |  |
| | To better understand their systems, many healthcare              |  |
| | organizations organize task forces aimed at preparing for        |  |
| | e-discovery requests and managing their EHR systems.             |  |
| |                                                                  |  |
| | At Presbyterian Healthcare Services, HIM and other officials     |  |
| | throughout the organization have routinely met on a task force   |  |
| | aimed at organizing their various record systems, Nunn says.     |  |
| |                                                                  |  |
| | This group, in which Nunn is a member, works on standardization, |  |
| | develops policies and procedures, builds compliance models, and  |  |
| | works out retention schedules for its records throughout the     |  |
| | organization. Included in the group is a subcommittee focused on |  |
| | addressing the federal e-discovery rules.                        |  |
| |                                                                  |  |
| | The task force also discusses how the organization's system      |  |
| | requirements fit together; for example, how e-discovery          |  |
| | requirements mesh with the HIPAA security rule. Nunn             |  |
| | communicates with department heads to ascertain where certain    |  |
| | types of records and information "live" in the system.           |  |
| |                                                                  |  |
| | She also is implementing the organization's Information          |  |
| | Technology Infrastructure Library, which will aid in developing  |  |
| | standard IT practices and create a systems inventory.            |  |
| |                                                                  |  |
| | HIM professionals have always needed to know where all paper     |  |
| | medical records were and how they were organized, Nunn says. "It |  |
| | is the same with electronic records. You have to figure out      |  |
| | where all \[content\] comes from and where it lives in case you  |  |
| | have to produce it."                                             |  |
| |                                                                  |  |
| | Designating an e-discovery liaison is another good step. This    |  |
| | point person is responsible for understanding the detailed       |  |
| | workings of the organization's system and the requirements of    |  |
| | e-discovery rules.                                               |  |
| |                                                                  |  |
| | **Store Only What's Vital**                                      |  |
| |                                                                  |  |
| | The last step is simple.                                         |  |
| |                                                                  |  |
| | If you store it, it's probably open to e-discovery.              |  |
| |                                                                  |  |
| | Therefore, several HIM professionals suggest that the only       |  |
| | records that should be routinely stored are those included in a  |  |
| | preset records management plan.                                  |  |
| |                                                                  |  |
| | "I wouldn't store everything unless it has a business use, or a  |  |
| | legal use, because if you are storing everything because you     |  |
| | might need it, then you are going to have to produce it,"        |  |
| | Baldwin-Stried says.                                             |  |
| |                                                                  |  |
| | Keeping everything without organization just makes more work for |  |
| | HIM come an e-discovery request.                                 |  |
| |                                                                  |  |
| | That's guaranteed.                                               |  |
| +------------------------------------------------------------------+  |
|                                                                       |
| +------------------------------------------------------------------+  |
| | **Preparation Checklist**                                        |  |
| |                                                                  |  |
| | -   **Read** the AHIMA practice brief "The New Electronic        |  |
| |     Discovery Civil Rule" for an overview of pretrial            |  |
| |     requirements and the relevance of each section of the rule   |  |
| |     to healthcare organizations. (September 2006\                |  |
| |     *Journal of AHIMA*)                                          |  |
| |                                                                  |  |
| | -   **Read** the *Journal* article "E-Discovery and HIM" for     |  |
| |     information on how amendments to the Federal Rules of Civil  |  |
| |     Procedure will affect HIM professionals. (October 2006       |  |
| |     *Journal of AHIMA*)                                          |  |
| |                                                                  |  |
| | -   **Review** your organization's information management plan   |  |
| |     and revise for e-discovery requests as necessary.            |  |
| |                                                                  |  |
| | -   **Review** your organization's legal hold policy and update  |  |
| |     to include important electronic records.                     |  |
| |                                                                  |  |
| | -   **Review** your organization's electronic records storage,   |  |
| |     retention, and destruction schedules.                        |  |
| |                                                                  |  |
| | -   **Document** the different electronic systems throughout     |  |
| |     your organization that feed the legal health record.         |  |
| |                                                                  |  |
| | -   **Convene** a task force with the HIM, IT, and legal         |  |
| |     departments to discuss e-discovery policies.                 |  |
| |                                                                  |  |
| | -   **Designate** an e-discovery liaison within your             |  |
| |     organization (usually from the HIM or IT department).        |  |
| +------------------------------------------------------------------+  |
|                                                                       |
| ***Chris Dimick**                                                     |
| ([                                                                    |
| [chris.dimick@ahima.org]{.underline}](mailto:chris.dimick@ahima.org)) |
| is staff writer at the* Journal of AHIMA.                             |
|                                                                       |
|   ------------------------------------------------------------------  |
|   **Article citation**:\                                              |
|   Dimick, Chris. \"E-Discovery: Preparing for the Coming Rise in      |
|   Electronic Discovery Requests.\" *Journal of AHIMA* 78, no.5 (May   |
|   2007): 24-29.                                                       |
|                                                                       |
|   ------------------------------------------------------------------  |
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