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Electronic document discovery is no longer limited to commercial litigation cases such as Microsoft and future Enron cases. It can be important in criminal, divorce, employment and particularly in medical malpractice claims as the computer age catches up to the health care industry. While corporate entities and businesses have long utilized computers and electronic communication, only now are hospitals and health care providers jumping on the bandwagon of electronic data record-keeping in the clinical setting. Thus, whether you represent plaintiffs or defendants, every litigator needs to be familiar with e-discovery. If not, you are missing an opportunity to obtain valuable evidence or subjecting you and your client to discovery sanctions or a spoliation instruction. Today, the smoking gun document most likely will be found in electronic form. But only by those trial attorneys who take the time to explore this new avenue of evidence. When analyzing a medical negligence case, the first order of business is to review the medical records. Have you ever wondered when you receive a stack of medical records, “Are these all the relevant records?” If not, you should. Now with the proliferation of computer records, you must ask that question in every case. Chances are you have not received all the relevant information available to you that has been stored electronically. Crucial evidence may be found in the opposing parties’ computer databases, backup files, deleted e-mail messages and voice mail. Administrative and accounting areas of the health care industry have long utilized electronic records just as any other large commercial corporation. However, there has been a lag in incorporating computers into patient-care areas of health care. Since the health care industry is just now embracing and integrating computer systems into the world of medicine, dual systems exist in many hospitals. When a dual system is utilized, there are traditional written charts and electronic forms of medical records. Both are discoverable. It is not an “either/or” discovery situation as the documents are generally not identical. The U.S. Court of Appeals for the D.C. Circuit held in 1993′s Armstrong v. Executive Office of the President, Office of Administration, et al., that printouts were not the exact copy of a computer record unless the paper version included all significant material contained in the electronic record. The court analogized that the two documents were more like kissing cousins as opposed to identical twins. A document’s electronic record can include information that indicates the person who accessed the record, when it was accessed, and if and how many times the record was revised. For example, in Microsoft Word, if you go under “File,” then “Properties,” you can simply and quickly determine the number of revisions to a document, when and by whom. The most likely areas to find computerized medical charts are labor and delivery, anesthesia, emergency rooms, particularly the triage area, cardiac catherization labs, and intensive care units. Additionally, some hospitals have linked medication records to pharmacies using infrared handheld computers. A nurse scans the bar code on the patient’s wristband. The handheld computer then allows the nurse to input the medication being given. Valuable information can be gleaned from this source. For example, if the medication is given outside the designated time parameters, the nurse must input the reason the medication has been given untimely before the computer will accept the entry. The entry is then transmitted to the pharmacy and the billing department. This type of computerized medication data can be useful in any case involving medications, such as an overdose case or a case involving the failure or delay in medication administration that results in injury. The search does not stop there. Electronic files, such as an electronic calendar, could provide a rich source of evidence regarding meetings and patient appointments. These calendars and files may show appointments scheduled as well as those canceled. In one failure-to-diagnose osteomyelitis case that I was involved with in 1997 in the 14th District Court in Dallas, the electronic calendar data was utilized to substantiate the testimony of the mother of the minor plaintiff that she had taken the child to the physician at a scheduled appointment for complications only to have the office staff cancel the appointment on arrival due to the physician’s personal errand. The staff then rescheduled the appointment for a later date. The physician testified that the mother had negligently canceled and rescheduled the appointment; she was “not truthful” about the appointments; and that the delay in treatment was the fault of the mother for not returning for the earlier appointment. The computer records substantiated the mother’s testimony and discredited the physician’s testimony. Other potential sources of computerized records include personal digital assistants (PDAs), home computers, laptops and databases (including word processing and accounting programs). Nurses use PDAs in the home health field to streamline paperwork and to access patient records remotely. PDAs are beginning to be seen in the emergency room as well. Additionally, offices or clinics may have individual stand-alone computers as well as a network system. It is possible that a physician, other health care provider, clerk or office staff could store information about a patient on any hard disk or floppy disk to which he/she has access and never print out that information. Retrieve data from the backup files, off site storage facility data, internet searches/e-mails, home computers, laptop computers, paging systems and handheld devices. SEQUENCE OF EVENTS While some of this information may require an expert to retrieve the data, some systems have a “history” button that will yield information such as who accessed the system, whether an entry was made or the chart was merely reviewed, and when the information was actually entered as opposed to the input time on the chart. Obtaining the history of events as they transpired according to the computer can shed light on the importance of the sequence of events in evaluating and settling a medical malpractice claim. In a 1998 brain-damaged baby case I was involved with in the 352nd District Court in Fort Worth, Texas, the computer-generated nursing notes indicated that the drug Pitocin was stopped at a certain time in the labor. The defendant nurse testified that she charted the entry during the labor and within minutes of stopping the Pitocin. Yet a review of the computerized history indicates the “Pitocin off” entry was not made until one year after delivery. In deposition, the nurses involved testified that absolutely no conversations took place regarding this case because nothing unusual happened. However, the history data revealed that crucial information was not charted by the defendant nurse until after the nursing supervisor, who was not on duty that evening, reviewed the chart a week later. Further review also revealed that the defendant nurse not only accessed the system multiple times after the incident, she also altered the medical chart one week prior to her deposition. Specific requests must be made in e-discovery. You must tailor your request to obtain information about the hardware system and software involved. For example, there are several different types of labor and delivery software systems. Request the operating and training manuals. Determine who was trained and on what portions of the machines. Request all versions of the record as well as a history of the access to the patient’s record. Because electronic communication may be easily destroyed, deleted or altered, lawyers may confront ethical issues. According to Rule 3.04(a) of the Texas Disciplinary Rules of Professional Conduct, a lawyer shall not, in anticipation of a dispute, unlawfully destroy, conceal or alter a document or other written material that a competent lawyer would believe has potential or actual evidentiary value. Comment 2 of the rule makes it clear that the rule applies to computerized information. An attorney may be faced with disciplinary action — even if the documents were only destroyed through negligence. Additionally, the attorney cannot counsel or assist other persons to alter, destroy or conceal documents. Both sides of the bar are required to give candid advice to clients to preserve documentation to avoid possible criminal or civil penalties. The data stored by health care providers, be it hospitals, physicians or other providers, can provide essential evidence that is generally not provided when a “copy of the medical records” are requested in standard discovery request. In considering what evidence may be available, specifically request the types of data that are involved in the particular case, including computerized medical records, e-mail, voice mail, deleted files, audit trails, equipment memory, maintenance records, online manuals and administrative policy data. Even if these files have been deleted, portions or the entire file may still be stored within the computer and could be discovered with the help of an expert. Remember that any changes that were made to the documents after the injury may be apparent from the electronic record audit trail. Further, multiple copies of the “medical record” may now exist in multiple variations and forms. Should you determine that you want to discover computerized data, it is important to act quickly by seeking a restraining order and/or by sending a letter requesting protection of the data. With the entry of computers into the health care field, the door is wide open for the trial attorney to obtain information that otherwise would not have been captured in a conventional setting. Leanna Marchand is a registered nurse and licensed attorney. She is a partner in Smith, Marchand & Kettles in Dallas.

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