Medical Information Discovery in the Digital Age

(as published by ABA Health eSource)

The brass clock on the desk reads 11:30 p.m., and the beleaguered attorney is preparing for a deposition or trial in a healthcare case by picking his or her way through thousands of pages of medical records, stacked up around the office like the columns of the Parthenon. With the advent of the Electronic Medical Record (EMR), this picture may soon be relegated to moist-eyed memory, along with carbon paper, the Dictaphone and floppy disks. President Bush has set a goal of national conversion to EMR within the next ten years. Healthcare attorneys must adapt their pre-trial discovery tools to keep up. Sooner rather than later, they will need to know what to request and where to find it. The time-honored Notice for Production of “All records and documents to be relevant to the treatment of Mary Jones” may yield a few sheets of paper at best. Similarly, an objection to discovery stating that the request is “burdensome,” without more, is likely to result in a nanosecond denial by a judge with even the most rudimentary computer knowledge. Producing parties face particularly daunting challenges: assuring that disclosure complies with federal and state confidentiality laws; that privileged material is not inadvertently disclosed; and that all pertinent electronic material is appropriately preserved.

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