Ch 3 Judicial Process of Health Information Flashcards
Purpose of Health Records
- Supporting direct patient care
- Quality improvement activities
- Public health monitoring
- Billing and reimbursement
- A legal document recording a patient care episode
What is required to disclose health information
patient permission or legal mandate
in a lawsuit, evidence is presented to?
prove or disprove facts
-testimony, writings, material objects
-health record
to be used evidence must be ?
admissible
-pertinent and proper
-determined by the judge in accordance with established rules of evidence
Hearsay
out of court statement offered to prove the truth of the matter asserted
hearsay rule
prohibits admission of hearsay into evidence, although exceptions to this rule exist
Are health records considered hearsay evidence?
yes
-providers write statements (entries)
-not made while under oath
Hearsay exceptions to use Health Records as evidence in a lawsuit
- 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 - accuracy and trustworthiness of the record
-custodian of record testifies
-explains record keeping procedures
manager may be called to testify as foundation and trustworthiness. must possess knowledge of and testify to:
-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
testimony
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
Privileged information
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
Physician- patient privilege
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
Attornery-client privilege
protection of communication between attorney and his/her client
work- product privilege
aka work-product doctrine
refers to materials collected in preparation for an anticipated litigation by an attorney or other persons
Exclusions
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
who is responsible for control and safekeeping of record
the provider
release of record
must be in accord with proper legal process
-authorization of patient
-court processes: subpoena, court oder, discovery request, warrant
health record ownership
HC provider owns the emdium in which information is stored i.e the chart
patient has property interest in that information
Subpoena
a command from a court or other authorized official
NOT the same as a court order
subpoena ad testificandum
directs witness to appear and give testimony
subpoena duces tectum
require production of documents or things
Common elements of a valid subpoena
-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
Court order
authorize disclosure that would otherwise be prohibited by statute or regulation
-subject to legal defenses
-disclosure of health information may be prohibited by privilege
Show cause order
-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
deposition
testimony under oath outside court room
interrogatories
written questions answered under oath
production of documents or things
inspection or copying of physical evidence
physical or medical examination
court may order with good cause
request for admissions
written questions presented to a party designed to obtain an admission of a certain fact
electionically stored information
-federal rules of civil procedure govern discovery
-rules revised in 2006 to address discovery and production of ESI
discovery process casued e-discovery
ESI includes:
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
E-discovery
-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
Special challenges raised by ESI
-dynamic and changeable
-space for storage may be limited
-data may be overwritten or deleted
-destruction may be done in ordinary course of business
Warrants
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
probable cause
belief based on facts that a crime has been or is about to be committed
warrant issued by who and based upon what
issued by a judge and based on probable cause
No knock warrant
used in situations where the evidence might be destroyed or police might be in danger
-officers do not have to announce presence
No warrant required if:
-exigent circumstances permits searchs without a warrant in time sensitive or emergency conditions
plain view doctrine
permits searches without a warrant
-suspect leaves item out open/visible
-officers are not required to wait for warrant
litigation response plan
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
Litigation Response Team
Members may include:
- Legal counsel
- Senior leadership
- Health information manager
- Information technology professional
Litigation Response Team
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
Response to requests
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
