Medical Records and the Law

490 CHAPTER 13: ELECTRONIC HEALTH RECORDSThe key to dealing with e-discovery is to manage EHRs and otherelectronic records effectively, especially with possible litigation in mind.Healthcare organizations and practitioners should take the followingaction in managing their electronic records in connection with possiblelitigation:• Preserve electronic records by suspending ordinary destruction practicesand identify the individuals with authority to impose this suspension. Aparty’s failure to halt document retention and destruction policy canconstitute bad faith and potentially justifies sanctions. 170 Notify thenecessary records management personnel both orally and in writingof document preservation obligations. Have a defensible preservationplan that will demonstrate a reliable preservation process.• Identify and gather relevant sources of data. Determine where the electronicinformation is stored (for example, on hard drives and backupmedia), and consider the time periods relevant to the case. Ensurethat the chain of custody for the data can be maintained and demonstrated.• Process the collected data. Once collected, the records must be processedso that they are accessible for attorney review. This involvesrestoring backup tapes or evidentiary images, recovering deletedfiles, removing password protections, and extracting data from proprietaryformats to more usable forms. Cull potentially responsivefiles from irrelevant data through use of search criteria.• Review the data. Categorize the documents as responsive to the discoveryrequest, privileged, confidential, and so on.• Produce the data. Increasingly, production will be in electronic form.Determine in what file form (such as .tif, .pdf, or native file format)and in what physical form (for example, hard drives, backup tapes,DVDs, or CD-ROMs).Professional LiabilityA concern for healthcare providers is whether EHRs will increase theirexposure to negligence liability. The same rules of negligence that have170See, e.g., Wiginton v. CB Richard Ellis, Inc., No. 02 C 6832, 2003 U.S. LEXIS 19128(N.D. Ill., Oct. 27, 2003).