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E-Discovery Issues Assignment Help

Provide a brief summary of the case and identify the e-discovery issue based on your knowledge from this module.

Negligence or Unintentional Torts vs Intentional Torts

A tort is a civil wrong for which the law provides the ability to file a lawsuit to recover damages in the form of monetary compensation. There can be both intentional and unintentional torts in healthcare settings as a cause of action. Some examples of intentional torts you would be familiar with are the - the surgeon who performs a procedure on the patient without consent, false imprisonment- the hospital refuses to allow the patient to leave the facility (although there are exceptions to this regarding situations such as contagious disease and mental health treatment for patients that pose a risk to themselves or others). Generally the more common the cause of action in a healthcare facility relates to unintentional torts or negligence and specifically of concern to HIM professionals is the cause of action which relates to the improper disclosure of health information. However it should be noted that there can be a cause of action for improper disclosure of health information that is an intentional tort: deliberate and unlawful conduct that results in harm is the key to determining intent.

Some of the most common causes of action with regard to improper disclosure of health information are:

  • Defamation (slander and/or libel)
  • Invasion of privacy
  • Breach of confidentiality
  • Infliction of emotional distress

Policies and procedures must be in place at the organization level to address confidentiality, privacy and security and manage the access and disclosure of information internally and externally.

Management of Health Information

Individuals responsible for the management of health information understand that patient information is routinely relevant as evidence in legal proceedings, whether that information is being used to allege a physician's negligence, assert that an individual is incompetent, or to raise any number of other issues. Individuals responsible for health information must be accountable for appropriately maintaining that information and acting as the "gate" for the appropriate disclosure of that information in legal proceedings. This week the focus is on state and federal privacy, procedural and evidentiary laws as well as the legal processes through which health records are actually requested and used as evidence during litigation.

Evidence is the means by which the facts of a case are proved or disproved (Garner 20014) and can be oral (healthcare expert), written (health record) or presented through pictures or objects (a piece of medical equipment). It is important to understand the Federal Rules of Evidence (FRE) and the state rules of evidence as these govern the admissibility of evidence during litigation. Although these tend to be similar, how where they are applied varies. For example if a case is tried in federal court or if the parties of the suit are from different states, the FRE's would apply, but if the case will be litigated in a state court than the state rules of evidence would apply. Health information is one type of evidence they may be admissible during civil litigation proceedings. The Federal Rules of Civil Procedure (FRCP) are rules that govern civil cases at the trial level in federal court and include eleven different categories, with Category V relating to discovery. As a result of the increasing use of electronically stored data the Supreme Court approved specific amendments dealing with the discovery on electronic data.

In today's healthcare environment health records can be maintained in paper, electronic versions or a hybrid. The continuing evolution of the electronic health record and electronically stored information (ESI) has led to the need to develop guidelines relating to the access, use, and retention of the information and data which is created and/or stored in some form of electronic media. These guidelines called e-discovery guidelines should be thought of as serving the same purpose as the previously existing guidelines for maintaining legal health records when they were solely maintained in paper format, protecting the privacy, confidentiality and security of the records while providing access to authorized users. However an HIM professional must be cognizant of the additional, or at least at a minimum of the different challenges that electronic versions of data present, such as locating all pieces of electronically stored data when it is requested and understanding how the "data about data", called metadata actually resides outside the record, even though it is significantly related to the electronic health record and can be used to authenticate the author or the time stamp for the creation of the document. The process for the location and preparation of electronic information required during the e-discovery process uses terminology which can be understood by all stakeholders was developed by those stakeholders-it is referred to as the Electronic Discovery Reference Model (EDRM). In the past the when paper records were required for litigation all that was needed was the verification that they were discoverable, the ability to locate the physical record and a copier. With the increase of ESI, health information management professionals may be involved in pretrial discussions to determine not only what information is needed but what information needs to be preserved and in what format will it be required to be presented. As a health information professional working is a healthcare organization you may have been instrumental in creating the e-discovery guidelines for your institution, but even you were not involved in the development it is essential to have a detailed understanding of the organization's e-discovery guidelines and the application of those guidelines in the process.

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The tort is wrongdoing for which the law permits individuals to file a lawsuit for recovering damages as monetary compensation. The different examples of Intentional Tort in healthcare are the surgeon that performs any kind of procedure without informing patients. On the other hand, an unintentional tort that healthcare professionals indulge is non-disclosure of information. The different causes that can lead to non-disclosure of information are defamation, breach of privacy and confidentiality, invasion privacy and administering of emotional distress. The issue that ESI solved is recording of information on paper. The major issue faced by healthcare professional management in electronic storing of data is that is identification, gathering, analyzing and transferring of relevant data.

E-discovery issues 

E-discovery is the legal process through which the data is identified, gathered, transferred and analyzed. The different e-discovery issues in the management of healthcare data and information are retention, recovery, access and use of data and information (, 2019). The different rules that healthcare professionals need to maintain while handling metadata in Electronic Health Record are that both vendors and service providers need to ensure that the standardize metadata scheme needs to be followed while storing of data and information in EHR. Another rule that healthcare needs to ensure that healthcare organizations need to ensure that the regulatory environment needs to be followed during the maintenance and management of data. Another e-discovery issue is that the information stored can be used for protecting the negligence performed by the physician or for asserting that service user is not competent and are not eligible for raising issues. As per the Federal Rules of Civil Procedure (FRCP), Rule 26 (f) (3), the parties that store any kind of electronic information must need to inform the court As per, Federal Rules of Civil Procedure, Rule 5, section e, states that the parties need to inform and take consent of parties whose data and information is to be electronically stored. Another challenge related to e-discovery is a lack of guidelines related to the electronic storing of data and information. In addition, the other issue identified is the terminology used for storing electronic information and data is understandable for all the stakeholders. So, the data can be used by stakeholders for personal purpose, thereby breaching the privacy and confidentiality of information. The increase in the use of ESI is causing management professional to get involved in pretrial discussion related to information that is to be stored, needed and preserved and format in which the data and information are to be stored. Another law that is applicable for protecting the electronic store information is Federal Rule of Evidence that governs evidence admissibility during the process of litigation. As per Federal Rule of Evidence, Rule 401, the evidence is found to be relevant only when it helps in determining action (, 2019). So, as per this rule, action can only be taken on healthcare professionals managing data is when the service users are likely to provide evidence-based on which action can be taken.

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