Ch 3 Judicial Process of Health Information

Question 1

Purpose of Health Records

Answer 1

• Supporting direct patient care
• Quality improvement activities
• Public health monitoring
• Billing and reimbursement
• A legal document recording a patient care episode

Question 2

What is required to disclose health information

Answer 2

patient permission or legal mandate

Question 3

in a lawsuit, evidence is presented to?

Answer 3

prove or disprove facts
-testimony, writings, material objects
-health record

Question 4

to be used evidence must be ?

Answer 4

admissible
-pertinent and proper
-determined by the judge in accordance with established rules of evidence

Question 5

Hearsay

Answer 5

out of court statement offered to prove the truth of the matter asserted

Question 6

hearsay rule

Answer 6

prohibits admission of hearsay into evidence, although exceptions to this rule exist

Question 7

Are health records considered hearsay evidence?

Answer 7

yes
-providers write statements (entries)
-not made while under oath

Question 8

Hearsay exceptions to use Health Records as evidence in a lawsuit

Answer 8

1. foundation for the record
   -made and kept in ordinary course of business
   -at or neat time event
   -by person with knowledge of the acts, conditons, events, opinions appearing in it
2. accuracy and trustworthiness of the record
   -custodian of record testifies
   -explains record keeping procedures

Question 9

manager may be called to testify as foundation and trustworthiness. must possess knowledge of and testify to:

Answer 9

-requirement to create & maintain records
-internal policies & procedures governing access to records
-quality control methods such as how correctoins are made
-if EHR there are additional steps

Question 10

testimony

Answer 10

may be deposition or at trial
asked series of questions under oath
may be asked to present and deliver heath record
testify to:
-full complete seach for all records done
-copy record is accurate and compete
-all entries made in ordinary course business
-procedures followed ensures accuracy

Question 11

Privileged information

Answer 11

may not be admissible
-not subject to subpoena or discovery
-may not be introduced at trial
-may be waived if party holding the privilege disclose protected information

Question 12

Physician- patient privilege

Answer 12

Created by statute
* to prevent disclosure or testimony about information obtained by health care provider during treatment
* encourage disclosure of relevant
information even if humiliating
* Patient holds the privilege
* Provider may assert privilege to prevent forced disclosure

Question 13

Attornery-client privilege

Answer 13

protection of communication between attorney and his/her client

Question 14

work- product privilege

Answer 14

aka work-product doctrine
refers to materials collected in preparation for an anticipated litigation by an attorney or other persons

Question 15

Exclusions

Answer 15

certain types evidence may not be introduced as evidence
some states have laws to prevent admission of an apology in medical malpractice case
-if provider apologizes to pt for unexpected outcome of care, given timely, expression of sympathy should not be used as evidence of fault in civil suit.
some states exclude sympathetic statement as well as acceptance of responsibility

Question 16

who is responsible for control and safekeeping of record

Answer 16

the provider

Question 17

release of record

Answer 17

must be in accord with proper legal process
-authorization of patient
-court processes: subpoena, court oder, discovery request, warrant

Question 18

health record ownership

Answer 18

HC provider owns the emdium in which information is stored i.e the chart
patient has property interest in that information

Question 19

Subpoena

Answer 19

a command from a court or other authorized official
NOT the same as a court order

Question 20

subpoena ad testificandum

Answer 20

directs witness to appear and give testimony

Question 21

subpoena duces tectum

Answer 21

require production of documents or things

Question 22

Common elements of a valid subpoena

Answer 22

-names of court, parties, docket #
-date, time, place appearance
-documents to be produced
-name and # of requesting attorney
-signature or seal of official empowered to issue
-witness fees, where provided by law

Question 23

Court order

Answer 23

authorize disclosure that would otherwise be prohibited by statute or regulation
-subject to legal defenses
-disclosure of health information may be prohibited by privilege

Question 24

Show cause order

Answer 24

-court decree
-directing appearance in court to explain why the court should not take a proposed action
-may be issued related to health information if no response to subpoena or court order

Question 25

deposition

Answer 25

testimony under oath outside court room

Question 26

interrogatories

Answer 26

written questions answered under oath

Question 27

production of documents or things

Answer 27

inspection or copying of physical evidence

Question 28

physical or medical examination

Answer 28

court may order with good cause

Question 29

request for admissions

Answer 29

written questions presented to a party designed to obtain an admission of a certain fact

Question 30

electionically stored information

Answer 30

-federal rules of civil procedure govern discovery
-rules revised in 2006 to address discovery and production of ESI
discovery process casued e-discovery

Question 31

ESI includes:

Answer 31

emails, web pages, word files, and databases stored in computer memory, magnetic disk, optical disk, flash memory, backup media
electronich health record is considered ESI

Question 32

E-discovery

Answer 32

-duty to preserve ESI and prevent spoliation
-need to preserve information must be balanced with need to conduct business
-e discovery rules designed to address special challenges

Question 33

Special challenges raised by ESI

Answer 33

-dynamic and changeable
-space for storage may be limited
-data may be overwritten or deleted
-destruction may be done in ordinary course of business

Question 34

Warrants

Answer 34

refer to court permission to search and seize property and/or information
-specific time limit to be carried out/executed
-all items seized must be inventoried and listed

Question 35

probable cause

Answer 35

belief based on facts that a crime has been or is about to be committed

Question 36

warrant issued by who and based upon what

Answer 36

issued by a judge and based on probable cause

Question 37

No knock warrant

Answer 37

used in situations where the evidence might be destroyed or police might be in danger
-officers do not have to announce presence

Question 38

No warrant required if:

Answer 38

-exigent circumstances permits searchs without a warrant in time sensitive or emergency conditions

Question 39

plain view doctrine

Answer 39

permits searches without a warrant
-suspect leaves item out open/visible
-officers are not required to wait for warrant

Question 40

litigation response plan

Answer 40

Health information manager should have a plan for how to respond to requests for health information
* Identify who will respond to requests for discovery and/or subpoenas
* Involve counsel (where appropriate)
* Response to e-discovery may require a team approach

Question 41

Litigation Response Team
Members may include:

Answer 41

• Legal counsel
• Senior leadership
• Health information manager
• Information technology professional

Question 42

Litigation Response Team

Answer 42

Clarify components of ESI: forms, format, data, records
Deal with issues of cost, storage, location, and
production of ESI
Determine measures to take to preserve and search for ESI

Question 43

Response to requests

Answer 43

Do not assume that every discovery request or
subpoena is proper or valid
-Improper release or protected health information may subject provider to liability
-Determine whether request is proper: is the information sought
* Subject to privilege
* Protected by strict confidentiality protections, such as substance abuse, mental health, or AIDS treatment records
-Refer questions about whether request is proper to legal counsel
* Attorney may seek a motion to quash the request
* If court denies motion, order to produce will be issued
* Ask requesting attorney for a release from the patient and release records upon receipt of authorization
* Excise portions of the health record that include protected information
if request is legally valid, manager will certify the
record:
* Verify that the copy is an exact duplicate of original
* Usually provided by letter or state approved form
* Never ignore a discovery request, subpoena, or court
order
* Failure to respond may result in fines