The Federal Rules of Civil Procedure, electronic health records, and the challenge of electronic discovery.

• Author: Byrne, Terrance K.

1. 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)

1. 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. (2) Litigation often follows. With the advent of electronic health records ("EHRs") and electronic monitoring tools, the risks that hospitals face regarding the storage and production of electronically recorded data have increased, and will continue to increase.

   Widespread adoption of EHRs (3) spurred by the Health Information Technology for Economic and Clinical Health Act ("HITECH"), (4) combined with recent advances in electronic monitoring and recording of patient data, will continue to change the nature of healthcare litigation. (5) Long battles over electronic discovery ("e discovery") have already begun. Archetypal cases such as Zubulake v. UBS Warburg (6) ("Zubulake I") and Rowe Entertainment, Inc. v. The William Morris Agency1 illustrate the serious financial implications of e-discovery. (8)

   Before the recent change to EHR, medical records were paper documents. (9) When a legal dispute arose, the record was secured. (10) When healthcare litigation began, specifically in the area of medical malpractice, the plaintiff's attorney would request the "complete medical record," which included all physician orders, progress notes, nursing documentation, and results of any testing. (11)

   What constituted a complete legal medical record could be clearly defined. Health care providers, with some direction from Centers for Medicare and Medicaid services (CMS) and the Joint Commission (JC), outlined what was to be included in the complete legal medical record. (12) The daily list of tasks needed for the patient care, reams of monitoring strips, the ubiquitous sticky notes left on the front of the chart to remind the physician to reorder the patient's antibiotics, and such similar items were routinely discarded in the usual course of business. (13)

   The advent of electronically stored records has caused a tremendous increase in the volume, type, and location of information that become part of a patient's treatment history. (14) At the same time, recent amendments to the Federal Rules of Civil Procedure ("FRCP"), specifically relating to electronically stored information ("ESI"), (15) have broadened the definition of "legal medical record." The combination has markedly increased the challenges and risks of litigation. (16)

   In an era of electronic health records, these and other issues will have to be addressed. Disparities among different courts' interpretations of the FRCP amendments have caused confusion for those in law and healthcare. (18) Additional amendments to the FRCP are necessary to provide clarity, especially in the area of healthcare electronic discovery. Specifically, future amendments should include:

   1. Enforcing the "Meet and Confer" process, especially as related to e-discovery and ESI;

   2. Clear specification about when the duty to preserve information begins;

   3. Delineating reasonable and consistent standards for production of information; and

   4. Outlining the details for when sanctions for failing to retain ESI are appropriate.

2. The World of Discovery

   As a guiding principle, Rule 1 states that the Rules are to be "construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding." (19) Under that premise, the purpose of discovery is not intended to be a tool for one party to gain a strategic advantage over its adversary. (20) Rule 26(b)(2) of the Rules specifically details the scope and limits of the civil discovery process. (21) Generally, and unless otherwise limited by the court, "[p]arties may obtain discovery regarding any nonpnvileged matter that is relevant to any party's claim or defense." (22)

   The scope of discovery is intended to be quite broad. (23) As expansive as a process that discovery may be, it is not intended to be without bounds. Indeed, the Rules provide clear grounds for the court to justifiably interfere with the discovery process. (24) The dramatic rise in the pervasiveness of EHRs, while improving outcomes and ensuring better accuracy for patient treatment, has concurrently complicated the discovery process when litigation is required to resolve a dispute. (25)

   Discovery is an integral component of the litigation process. Black's Law Dictionary defines it as:

   1. The act or process of finding or learning something that was previously unknown.... 2. Compulsory disclosure, at a party's request, of information that relates to the litigation.... 3. The facts or documents disclosed.... 4. The pretrial phase of a lawsuit during which depositions, interrogatories, and other forms of discovery are conducted. (26)

   The FRCP delineate what evidence is to be shared during discovery. (27) Rule 26 details what kind of information must be shared between parties during discovery:

   (a) Required Disclosures.

   (1) Initial Disclosure.

   (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

   (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

   (ii) a copy--or a description by category and location--of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

   (iii) a computation of each category of damages claimed by the disclosing party--who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

   (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all...