© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 1

2 Chapter 3: Judicial Process of Health Information

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 3 Introduction Health records serve multiple purposes: –Supporting direct patient care –Quality improvement efforts –Public health monitoring –Billing and reimbursement –A legal document recording a patient care episode Disclosure of health information requires patient permission or legal mandate

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 4 Legal Uses for Health Information

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 5 Legal Uses for Health Information: Evidence In a lawsuit, evidence is presented to prove or disprove claims: –Testimony, writings, objects/things –Health record To be used, evidence must be admissible: –Pertinent and proper –Relevant to the matter –Determined by the judge in accordance with established rules of evidence

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 6 Hearsay Evidence Out of court statement offered to prove the truth of the matter asserted Health records are considered hearsay evidence –Providers write statements (entries) –Not made while under oath Hearsay rule: prohibits admission of hearsay into evidence, although exceptions to this rule exist

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 7 Exception to the Hearsay Rule To use health records as evidence in a lawsuit, party must establish: –Foundation for the record It was made and kept in the ordinary course of business At or near the time of the event By a person with knowledge of the event or acts recorded –Accuracy and trustworthiness of the record Custodian of records testifies Explains record-keeping procedures

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 8 Health Record as Evidence: Role of Health Information Manager Manager may be called to testify as to foundation and trustworthiness Must possess knowledge of and testify to: –Requirements to create and keep records –Policies and procedures governing access to records –Quality control methods such as how corrections are made –If EHR, there are additional steps

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 9 Health Record as Evidence: Role of Health Information Manager Testimony may be deposition or at trial Asked a series of questions under oath May be asked to present and deliver health record May be asked to testify that –A full and complete search for all records was done –Copy of record is accurate and complete –All entries were made in the ordinary course of business –Procedures are followed to ensure accuracy of record

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 10 Health Record as Evidence: Privilege Privileged information may not be admissible into evidence A privilege is a legal right to keep certain information confidential –Not subject to subpoena or discovery –May not be introduced at trial May be waived if party holding the privilege discloses protected information

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 11 Health Record as Evidence: Physician – Patient Privilege Created by statute Used to prevent disclosure or testimony about: –Information obtained by health care provider –During treatment Purpose is to encourage disclosure of relevant information even if embarrassing or humiliating. Patient holds the privilege –Provider may assert privilege to prevent forced disclosure

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 12 Health Record as Evidence: Exclusions Rules of evidence include exclusions –Certain types of evidence may not be introduced into evidence Some states have laws that prevent admission of an apology in a medical malpractice case. –If provider apologizes to patient for an unexpected outcome of care –And it is given in a timely manner –This expression of sympathy should not be used as evidence of fault in a civil suit –Some states exclude both a sympathetic statement as well as an acceptance of responsibility

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 13 Responses to the Legal Process Health record ownership –Health care provider owns the medium in which the information is stored (i.e., the chart) –Patient has a property interest in that information Provider is responsible for control and safekeeping of record Release of record must be in accord with proper legal process –Authorization of patient –Court processes: subpoena, court order, or discovery request

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 14 Responses to the Legal Process: Subpoena A command from a court or other authorized official Subpoena ad testificandum: directs witness to appear and give testimony Subpoena duces tecum: requires production of documents or things A subpoena is not the same as a court order

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 15 Elements of a Valid Subpoena Names of court, parties, docket number Date, time, and place of appearance Documents to be produced Name and phone number of requesting attorney Signature/seal of official empowered to issue Witness fees, where provided by law

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 16 Responses to the Legal Process: Court Orders Authorizes disclosure that would otherwise be prohibited by statute or regulation Differs from a subpoena –Cannot authorize disclosure that is otherwise prohibited –Is subject to legal defenses –Disclosure of health information may be prohibited by privilege, for example

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 17 Court Orders Show cause orders –Court decree –Directing appearance in court to explain why the court should not take a certain action –May be issued related to health information if no response to a subpoena or court order

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 18 Responses to the Legal Process: Discovery Requests Requests for health information may be made during the discovery process Depositions: Testimony under oath Interrogatories: Written questions answered under oath Production of Documents and Things: inspection or copying of records Physical or Medical Examination upon good cause shown

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 19 Discovery Requests: Electronically Stored Information (ESI) Federal Rules of Civil Procedure govern discovery Rules revised in 2006 to address discovery and production of ESI ESI includes computer files, s, flash memory, DVDs or CDs and back up media Electronic Health Record is considered ESI Discovery process if called E-discovery

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 20 E-Discovery Duty to preserve ESI and prevent spoliation Special challenges raised by ESI –It is dynamic and changeable –Space for storage may be limited –Data may be overwritten or deleted –Destruction may be done in the ordinary course of business Need to preserve information must be balanced with need to conduct business E-discovery rules designed to address special challenges

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 21 E-Discovery: Duty to Preserve ESI Litigation hold –Duty to preserve data that is triggered by Notice from an adversary of intent to sue Awareness of possession of evidence that could be relevant in a future lawsuit –“Locking down the data”: prevent routine destruction –May be issued before lawsuit is filed Order of preservation –Court order requiring preservation of ESI

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 22 E-Discovery: Duty to Prevent Spoliation Wrongful destruction or alteration of evidence Failure to preserve property or data for another’s use as evidence If spoliation is proven, sanctions may be imposed Issue is whether party who destroyed evidence had reason to know not to do so

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 23 Litigation Response Plan Health information manager should have a plan for how to respond to requests for health information Identify who will respond to requests for discovery and/or subpoenas Involve counsel where appropriate Response to e-discovery may require a team approach

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 24 Litigation Response Team: E-Discovery Members may include –Health information manager –Senior leadership –Legal counsel –Information technology professional Clarify components of ESI: forms, format, data, records Deal with issues of cost, storage, location, and production of ESI Determine measures to take to preserve and search for ESI

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 25 Response to Requests Do not assume that every discovery request or subpoena is proper or valid Improper release or protected health information may subject provider to liability Determine whether request is proper: is the information sought –Subject to privilege –Protected by strict confidentiality protections, such as substance abuse, mental health, or AIDS treatment records

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 26 Response to Requests Refer questions about whether request is proper to legal counsel Attorney may seek a motion to quash the request –If court denies motion, order to produce will be issued Ask requesting attorney for a release from the patient and release records upon receipt of authorization

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 27 Response to Requests Never ignore a discovery request, subpoena, or court order –Failure to respond may result in fines. If request is legally valid, manager will certify the record: –Verify that the copy is an exact duplicate of original –Usually provided by letter or state approved form