Discovery: Paper Records and Electronic Information
August 31, 2017 | Health System Risk Management
During litigation, discovery is the exchange of nonprivileged information relevant to the parties' claims and defenses through formal legal mechanisms. The purpose of discovery is to narrow the issues involved in a case, identify relevant facts, prevent unfair surprises at trial, and, when appropriate, encourage pretrial settlements. In short, the rules that govern the process of discovery in litigation are intended to level the playing field among the parties to a lawsuit and help make a trial a fair contest. Many attorneys consider discovery to be the most important part of the litigation process because it exposes the strengths and weaknesses of each party's claims or defenses and significantly influences decisions about whether a case should be settled or tried to a jury verdict.
When an organization receives notice of a lawsuit by summons or complaint, or even notice of a potential lawsuit by a demand for compensation, the organization must act swiftly to initiate a comprehensive response plan. It should immediately contact its professional liability insurance carrier, which will direct it to contact legal counsel. Time is of the essence when filing an answer to a complaint. Immediate initiation of a litigation response plan is a key element of forming an effective defense strategy and discovery plan. Even when a risk manager anticipates that a lawsuit may be filed, usually due to an adverse event, the organization should initiate a standard protocol to preserve all relevant records.
Responsibilities of healthcare risk managers customarily involve assisting their organization's defense counsel during discovery. Responsibilities may include providing the information that defense counsel will need to prepare affirmative defenses against charges of negligence, responding to requests for information and documents from adverse parties, identifying information that supports a claim of privilege from discovery, and helping to arrange depositions of hospital employees. Risk managers may also participate in responding to requests for patient records in litigation to which the hospital is not a party. Examples of such litigation are product liability lawsuits brought by a former patient against a medical-device manufacturer, or personal injury lawsuits such as auto accident claims. Risk managers may also help legal counsel resolve litigated disputes concerning employment, contracts, or other business matters.
Routine discovery includes requests for ESI and paper records. Many organizations have transitioned to electronic health records (EHRs), have implemented computerized provider order-entry systems, and use electronic clinical decision support systems. Further, organizations routinely communicate with patients via e-mail and allow use of mobile electronic technology (e.g., laptops, smart cell phones). Organizations transitioning to EHRs will have both ESI and paper documents. Even organizations that have medical records in paper format have discoverable ESI (e.g., e-mail, business records, employee pay records, online marketing information). See Types of Electronically Stored Information for examples of common types of ESI.
By becoming familiar with discovery expectations, including court approaches to discovery of documents and electronic information in litigation, risk managers can work effectively with IT, health information management, and legal counsel to proactively address problems that may arise. See the guidance articles [Preparing Staff for...