EXECUTIVE SUMMARY
Discovery is an important part of litigation that risk managers must fully understand. The rules governing discovery may influence how some investigations and documentation are handled.
- Plaintiffs and defendants use discovery.
- State laws vary on what is discoverable.
- The process can be abused with overly broad discovery requests.
Discovery is one of the first steps in malpractice litigation. It is crucial for risk managers to understand what information can be demanded by opposing attorneys. A proper understanding of the process can guide both how healthcare organizations conduct investigations and the outcome of litigation.
Laws on discovery vary by state, but generally, they stipulate all parties involved in litigation are entitled to information or documents relevant to the claims, or that could lead to the discovery of admissible evidence, says Robert L. Kilroy, JD, partner with Mirick O’Connell in Westborough, MA. The intent is to allow the parties to cast a broad net to find the truth of the claims.
Some information is shielded from discovery, including anything protected by attorney-client privilege.
“Risk managers, in particular, should be mindful when they are creating documents of whether they should be doing it in the context of the attorney-client privilege. That would mean sending a memo or email to the in-house or outside counsel seeking legal input on a matter,” Kilroy says. “You can always waive the attorney-client privilege on that document if you feel you need to use it in litigation. But if you have not cloaked it in that privilege originally, you can’t later try to claim that you were seeking legal advice.”
Information protected by the peer review privilege also might not be discoverable, but determining what falls in this category can be contentious, Kilroy says. Federal courts are more likely to override the peer review privilege than state courts for matters such as a claim that race influenced the quality of care. The peer review privilege, unlike the attorney-client privilege, cannot be waived.
“If the information is from the peer review committee and their deliberations, the hospital cannot decide to disclose it because it would help your case,” Kilroy explains. “If the information is inadvertently disclosed in a deposition, for instance, the other party may be thrilled to get that information, but the hospital can come back later and inform the court that it was protected by peer review privilege and cannot be used at trial. That is not always the case if it was an inadvertent disclosure of attorney-client privilege material or work product.”
Other than the specific exceptions, a document is discoverable if it is reasonably calculated by the parties or their lawyers to lead to admissible evidence, says Matthew Carter, JD, attorney with Inc and Go, a business formation company in Kempner, TX. He handled hospital litigation in a previous role with a large law firm.
“In real-world terms, that means as long as there is a decent chance that they can find some useful evidence for the trial, the discovery is OK,” Carter says. “If that standard sounds very broad, it’s meant to be.”
The hospital or medical provider sued for malpractice also has the right to obtain discovery on the patient’s healthcare records, Carter notes. In other words, a patient cannot sue and then try to protect their records from discovery based on confidentiality.
The medical provider is allowed to call the patient’s attorney and tell him or her what they plan to produce, Carter says. That might not be everything the plaintiff’s attorney asked for, because discovery requests often are overly broad. (For more on overly broad requests and discovery abuse, see the story in this issue.)
Remember to handle records carefully. If you are submitting the records to a lawyer, you still are legally obliged to submit them in a way that protects confidentiality from third parties who are not entitled to that information because of the lawsuit.
Attorney-Client Privilege Applies
The strongest protections to communications will be available where an in-house or outside attorney is actively providing advice to hospital or healthcare organization’s employees, says Kevin P. Mulry, JD, partner with Farrell Fritz in Uniondale, NY. Any such communications should be clearly marked as subject to attorney-client privilege.
In malpractice cases, plaintiff’s attorneys often seek documents from peer review committees, even though the documents usually are shielded from discovery, Mulry says. In New York and some other states, there is an exception for statements by a person to a review committee meeting when that person, who may be a treating doctor, is a party to a court action.
“Recently, the New York Appellate Division in Brooklyn reviewed these statutory protections to answer the question of whether the privilege covers statements in committee minutes that are attributed to the committee itself, or where the speaker was not identified, or whether the party statement exception applies to those statements,” Mulry explains. “The court held that the hospital had the burden of establishing that the statutory privilege applied, so if the speaker was not identified, the privilege did not apply, and the information should be disclosed.”
Hospitals and healthcare organizations should ensure the records of peer review committees clearly identify the speakers in committee meetings so they can assert the broadest use of the privilege.
State Laws Govern Discovery
In civil cases, privileges from discovery are established and governed by state law, says Adam N. Hirsch, JD, an attorney with Roetzel & Andress in Chicago.
In addition to attorney-client communications and peer review documents, discovery may be barred for spousal privilege and privileged communications with a faith advisor.
“The first step in protecting privilege is to understand the scope of the privilege you want to use. If you are working in a Dallas office of an Illinois company and send an email to an in-house lawyer working from her home in Indiana, which state’s privilege law will apply? Talk to your lawyers and find out,” Hirsch says. “Then, ask them to give you a summary of the law and guidance on what is in bounds and what’s out of bounds. It is far better to do this preventively rather than in the middle of responding to a lawsuit or some other type of emergency.”
Hirsch suggests two guardrails for discoverability. First, presume any written material will be sought in litigation. Second, do not assume an email is automatically privileged if a lawyer is copied on it.
“The key to using the attorney-client privilege is that you have to be asking for legal advice,” Hirsch explains. “Simply copying a lawyer on a business document or asking a lawyer a business question may take you outside the protections of that privilege. Don’t assume that cc’ing a lawyer is sufficient. It isn’t.”
Recent changes to discoverability have been more on the technology side than in the courts, Hirsch says. The proliferation of text messaging and cloud storage makes more information subject to discovery in litigation. Cloud storage and phone backups mean old messages can live on for years.
Twenty years ago, litigators focused on emails as the primary source of juicy discovery finds, Hirsch says. That was because emails substituted for phone calls.
“People were candid, and had not yet internalized that emails are stored, preserved, and discoverable. That lesson has largely been learned, and the informality has transferred to text messages and chat apps,” he says. “These messages feel impermanent, and people share information via text that they would never put in an email. When I’m litigating, text messages are one of my first discovery targets. People may wise up as they did with email, but that hasn’t happened yet.”
Hirsch notes a reluctance to use voice calls when email, text, and chat apps are used so routinely. Fight that reluctance, he advises.
“If you have an in-house legal department, call them before you send that email, not after,” Hirsch says.
Important Peer Review Exception
In medical malpractice actions, the general understanding is all the patient’s records and radiologic imaging are discoverable, says Cynthia Robinson, JD, partner with Shaub, Ahmuty, Citrin & Spratt in New York City. However, additional items, such as audit trails and logs, also are discoverable.
Although most materials prepared by or presented at a quality assurance, peer review, or morbidity and mortality conference are not discoverable, there is one important exception of which all risk managers should be aware.
“In the event that a party to the lawsuit, meaning a named defendant, writes a statement for the quality assurance, peer review, or morbidity and mortality conference, that written statement is discoverable,” Robinson explains. “While most risk managers are aware of this exception, there are many times when the individual providers are not aware. Further, many risk managers believe there to be a gray area relative to this exception. A written party statement, which is discoverable, is any form of writing at all by a named party.”
This includes emails, PowerPoint slides, text messages, handouts at the presentation, and notes taken during the presentation. While the named party can and should participate in the presentation for his or her patient, Robinson says it is imperative they make verbal statements only and do not create any written materials connected to it.
Given advancements in technology, there have been some recent changes to the types of discovery created and requested in medical malpractice cases.
“Electronic medical records [EMRs] have increased the speed and ease with which medical providers can document their treatment, review a patient’s history, and enter orders for various treatments,” Robinson says. “Personally, I believe they have also served to better the defense in these cases, as all information is typed as opposed to handwritten. As we all know, doctors are not known for having the best handwriting, and with the introduction of EMRs, handwritten notes are a thing of the past.”
Audit Trail Is Not Enough
Plaintiff’s attorneys sometimes attempt to strengthen their case by asserting the records were altered, Robinson says, a strategy intended to discredit a provider before the jury. Before EMRs, plaintiff’s attorneys would employ handwriting experts and enlarged medical records to show a difference in the ink used from one area on a page within the chart to another.
However, with EMRs, the audit trail for the records is discoverable and often demanded. The audit trail may show when an entry was made, when it was altered, and when it was saved.
The audit trail for each healthcare organization is different depending on the EMR system. Although the audit trails are discoverable, providing the audit trail alone is insufficient to thwart claims of “doctored records.” The defendant must provide a detailed explanation for the entry titles, types, and times to guide the plaintiff and the jury through the material.
“Without this, there can be quite a bit of confusion as to what information is being provided. The audit trail may indicate that the records were ‘modified’ at a certain date and time, but this could mean a plethora of different things as opposed to the often-claimed meaning that a provider changed the records for their own benefit in the lawsuit,” Robinson says. “Many times, ‘modified’ can mean that an order was changed from an in-process status to a complete status. It may indicate that a supervising attending added their own statement to a progress note authored by a resident, agreeing with the course of action.”
Provider Access Will Be Questioned
The most common mistake with discoverable materials is when providers access the plaintiff’s medical records after the commencement of a lawsuit, Robinson says. Most often, providers still employed at the facility that treated the plaintiff handle this because those providers can easily access those records. Often, a medical provider will be served with the complaint in a lawsuit, and immediately open the patient’s chart to refresh their recollection as to the treatment provided.
However, audit trails are discoverable. Although this natural inclination toward curiosity is innocent, it will be used against the provider at their deposition or at trial. The entire point of requesting an audit trail is to attempt to assert falsifying records.
“Whether that is the case or not, it is a favorite of plaintiff’s attorneys to point out that on the day the provider was served with the lawsuit, the plaintiff’s medical records show, from the audit trail, that the provider looked over all of the records,” Robinson notes.
Usually when patients choose to sue, they cease treatment with that doctor. But sometimes, they will continue treatment with the physician they sued.
“I had such an instance with a newly minted physician working in a busy hospital system. The plaintiff had been treating with him for several years and had been diagnosed with a condition for which the plaintiff thought the doctor should have detected earlier. The plaintiff had an appointment with the doctor, and later that day had him served with the complaint in the lawsuit,” Robinson recalls.
In shock from the news of the lawsuit, this doctor immediately accessed the plaintiff’s EMR and began reviewing the notes, tests, and other records. The doctor also modified his note from the plaintiff’s presentation to him that day to include an addendum noting that he was served with the complaint and would be contacting his attorney.
“While this addendum would quickly and clearly explain to anyone reviewing the records at a later date why the plaintiff’s treatment ended so suddenly, it also showed on the audit trail, as the doctor was bouncing all over the records and then making a modification,” Robinson says.
Physician Background Is Discoverable
In malpractice cases, information about a provider’s background and training is both relevant and admissible, says Paul F. Schmeltzer, JD, an attorney with Clark Hill in Los Angeles. Evidence of a provider’s misdeeds is relevant and material to show hospitals that granted privileges to the provider knew or should have known of such misdeeds, and arguably should have done something different to protect their patients.
Healthcare entities also should consider information in a provider’s personnel files may be relevant to a provider’s misconduct at issue in a case. For example, information on a provider’s history of drug use is reasonably expected to be recorded in his or her personnel file.
The healthcare entity could argue the work product doctrine bars discovery of certain information in a provider’s personnel file, Schmeltzer says. However, if that information was not compiled in reasonable anticipation of litigation, then refusing to disclose personnel information during a discovery request because of the work product doctrine is likely to fail.
Remember the plaintiff’s attorney will seek to determine whether the healthcare entity violated its own policies in the care provided to the plaintiff. The individuals responsible for drafting the policy should anticipate being deposed during discovery for questioning about whether the provider violated a specific policy in relation to the plaintiff’s care.
“Failure to implement a policy that was designed for the healthcare entity could support a patient’s assertion that there was a violation of the standard of care applied to them,” Schmeltzer says. “Every time a healthcare entity drafts a new policy or revises an existing policy, the revised policy must be shared with all relevant staff and, to the extent practical, the healthcare entity should conduct training for their staff regarding the new or revised policy.”
SOURCES
- Matthew Carter, JD, Inc and Go, Kempner, TX. Email: [email protected].
- Adam N. Hirsch, JD, Roetzel & Andress, Chicago. Phone: (312) 582-1677. Email: [email protected].
- Robert L. Kilroy, JD, Partner, Mirick O’Connell, Westborough, MA. Phone: (508) 860-1464. Email: [email protected].
- Kevin P. Mulry, JD, Partner, Farrell Fritz, Uniondale, NY. Phone: (516) 227-0620. Email: [email protected].
- Cynthia Robinson, JD, Partner, Shaub, Ahmuty, Citrin & Spratt, New York City. Phone: (212) 660-3434. Email: [email protected].
- Paul F. Schmeltzer, JD, Clark Hill, Los Angeles. Phone: (213) 417-5163. Email: [email protected].
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