For The Defense, July 2010 - DRI Today

Data Bank, from page 35ner’s negligence, settlement on behalf of theentity only may appear suspicious. Suspicionmay be further heightened if the partieshave formally denied that the corporatedefendant is vicariously liable for the individualpractitioner’s alleged malpractice.Expense ReimbursementThe NPDB Guidebook identifies a categoryof payments as “loss adjustment expenses,”or LAEs, made for expenses incurred bythe claimant other than those in compensationof injuries, such as attorney’s fees,billable hours, expert witness fees, anddeposition costs. NPDB Guidebook, p. E-10.These expenses should be reported to theNPDB only if they are included in a medicalmalpractice payment, and should beitemized in the description section of thereport form. Id. at E-12. If LAEs are notincluded in the medical malpractice paymentamount, they are not required to bereported to the NPDB. Id. If a payment ismade only for LAEs, then the payment isnot required to be reported at all. http://www.npdb-hipdb.hrsa.gov/faq-Reporting.html.As a practical matter, this means thatif a claim can be resolved by the reimbursementof some or all of a claimant’sclaim- related costs, and not merely in generalconsideration of the release of a medicalmalpractice claim, such payment isnot required to be reported to the NPDB.Claims where resolution along these linescan be accomplished will be rare, but thisprovides a legitimate avenue for resolutionof a truly “nuisance- value” claim withoutNPDB reporting.ConclusionEvery professional liability claim involvesan attack on the discharge of the defendant’sprofessional talents, skills and obligations.For the defendant, such claimsare not about “mere negligence,” but aboutwhether the defendant deserves to bedeemed a professional. In medical mal-practice actions, the impact of this attackis heightened by the prospect of NPDBreporting, and the reality that a settlementwill not provide full and final resolutionof the claim, but will hang an albatrossaround the practitioner’s neck for the restof his or her career.For those of us who seek to assist practitionersand liability carriers in making fullyinformed decisions about claim values, trialand settlement, an understanding of theNPDB is vital. Exploration of the impact ofNPDB reporting should be accomplished atthe outset of the litigation, so that opportunitiesfor strategically wise settlement willnot be squandered, and so that both thedefense attorney and the insurance carriercan adequately discharge their duties to thepractitioner. With this, as with every aspectof trial and litigation defense, assisting clientsand insurers in seeing around cornersand preparing for developments can onlyimprove the defense, and, accordingly, thequality of service.EHR Liability, from page 44Importantly, the rules have never containedan exception for the health care industry;they apply equally to all litigants.The case law has since demonstrated thatthe law will not treat health care institutionsany differently than any other litigant whendeciding e- discovery disputes. See Cason-Merenda v. Detroit Medical Center, No. 06-15601, 2008 WL 2714239 (E.D. Mich. 2008)(denying e- discovery cost- shifting motionon behalf of two health system subsidiariesin antitrust class action lawsuit resultingin burden placed solely on health system);see United Med. Supply Co. Inc. v. UnitedStates, No. 03-289C, 77 Fed. Cl. 257 (Fed.Cl. 2007) (sanctioning the government forfailure to have medical treatment facilitiespreserve e- discovery); Regan- Touhy v. WalgreenCo., 526 F.3d 641 (10th Cir. 2008) (upholdingthe district court’s determinationthe e- discovery obligations met by provider,without producing audit trail for who hadviewed electronic record as opposed to conductedtransactions). The amended ruleshave been applied to parties regardless of industryor whether or not they are preparedfor or have been accustomed to e- discovery.The rules have been applied to large businesses,small businesses, and even individuals.See Teague v. Target, No. 3:06CV191,WL 2007 1041191 (W.D.N.C. Apr. 4, 2007)(sanctioning an individual plaintiff with aspoliation charge for failure to preserve alaptop). Thus, health care institutions thatbasically have not prepared to respond toe- discovery requests remain increasinglyvulnerable to both monetary and discoverysanctions over time.Relative inexperience with e- discoveryis not health care’s only problem. ManyEHR systems, which generate an enormousamount of electronic data, wereimplemented before the e- discovery ruleswent into effect, probably without consideringimpending e- discovery obligations.As such, unlike many other industries,health care providers are probably uniquelyexposed because they may lack the expertiseand proper tools to meet the potentiallyimmense discovery obligations thattheir revolutionary systems create. At present,health care institutions are still especiallyvulnerable to e- discovery requestsdue to failures to identify, locate, and produceall relevant data, failures to retain orstore data, and failures to preserve data inits original form once a litigation hold hasbeen issued, particularly in actively usedor live EHR databases. It is relatively easyunder federal law to accidentally spoil electronicevidence, therefore, a medical institutionor practice that has never beforefaced electronic evidence may need to routinelyuse technology consultants.ConclusionAlthough EHRs have now achieved mainstream,clinical adoption, EHR- related liabilitytrends have not developed fully. Atthis early point, we can discern some potentialliability areas. In an early EHR implementationstage, source of truth issues andexpansion of liability issues may arise. Inusing EHR systems, the evolving standardsof care for clinical documentation andwork-arounds pose risks. Security as mandatedby data breach laws or retention andstorage issues involving e- discovery liabilityand data integrity have also emergedas important areas. Also, from a healthcare law and medical liability perspective,defense counsel must become extremelyattuned to the conceptual and practicaldifferences at play in most electronic heathdocumentation systems. When in doubt,seek technical assistance from within oreven outside an institution, otherwise youmay miss a great deal of information tohelp your client’s case.For The Defense n July 2010 n 87