Chapter 5 Test 2

Question 1

Means by which facts of a case are proved or disproved

Answer 1

Evidence

Question 2

Evidence may be presented in these forms:

Answer 2

Oral testimony
Contained in written documents
Presented through pictures and objects

Question 3

These federal and state laws govern admission of evidence during litigation

Answer 3

Federal Rules of Evidence (FRE)

State laws similar to FRE

Question 4

Used to prove injuries or crime in:
Personal injury cases
Malpractice (establish standard of care)
Workers compensation
Disability 
Custody issues
Mental competence
Criminal proceedings
White-collar crime (fraud and abuse)

Answer 4

Health Information

Question 5

What are the types of evidence?

Answer 5

Direct
Demonstrative
Documentary Evidence
Circumstantial

Question 6

Real, tangible, or clear evidence of a fact, happening, or thing that requires no thinking or consideration to prove its existence

Answer 6

Direct

Question 7

Actual objects, pictures, models, and other devices that are supposedly intended to clarify the facts for the judge and jury; how an accident occurred, actual damages, medical problems, or methods used in committing an alleged crime

Answer 7

Demonstrative

Question 8

Evidence in written form, not oral, original records, letters, emails, photos, use to prove a fact

Answer 8

Documentary evidence

Question 9

Evidence that is not directly from an eyewitness or participant, and requires some reasoning to prove a fact

Answer 9

Circumstantial

Question 10

Governed by state and federal rules of evidence

• Admissibility
• Hearsay
• Business records exception
• Best evidence rule
• Privilege

Answer 10

Evidentiary Rules

Question 11

Whether or not a health record tends to make the existence of any fact more or less probable than it would be without the record refers to __________.

a. Burden of proof
b. Discoverability
c. Admissibility
d. Relevance

Answer 11

Relevance

Question 12

Evidence that is allowed to be admitted in a court of law
- Must be relevant evidence (tends to prove
or disprove a fact)
- Must be “authenticated evidence” that is “evidence sufficient to support a finding that
the matter in question is what its proponent
claims”

Answer 12

Admissibility

Question 13

Established by record custodian’s affidavit that is
- Documented in the normal course of
business (following normal routines)
- Kept in the regular course of business
- Made at or near the time of the matter
recorded
- Made by a person within the business with
knowledge of the acts, events, conditions,
opinions, or diagnoses appearing in it
Additional challenge to authenticate ESI (Electronically Stored Information)
- Need to describe how an electronic
system monitors or manages modifications
or different versions of electronic
documents

Answer 13

Authenticated Evidence

Question 14

Barbara Smith claims negligence as the result of misuse of a laser during cosmetic surgery. Which of the following records would be admissible?
a.All of Barbara’s previous health records
b.All health records of patients who the
physician has performed this procedure
on
c.All health records from Barbara’s primary
care physician
d.All of Barbara’s health records pertaining
to the laser use during her cosmetic
surgery

Answer 14

All of Barbara’s health records pertaining to the laser use during her cosmetic surgery

Question 15

An out-of-court statement introduced into a court proceeding to prove the truth of the facts asserted in that statement
- Generally not admissible because the
maker of the statement can’t be cross-
examined at the time the statement was
made
- Health records considered this

Answer 15

Hearsay

Question 16

Spontaneous exclamations
Dying declarations
Business records exception (next slide)
Statements made for medical diagnoses or treatments

Answer 16

Examples of hearsay exceptions

Question 17

May be admissible if there is a reason for the statement to be deemed truthful
Medical records are admitted under the ________ exception if
Record was made at or near the time by, or from, information transmitted by a person with knowledge
Record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit
Making the record was the regular practice of that business activity
All these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with statute permitting certification
The opponent does not show that the source of information or the method or circumstances of preparation indicate a lack to trustworthiness

Answer 17

Business Records Exception

Question 18

There are ______ other hearsay exceptions based on Federal Rules of Evidence

Answer 18

23

Question 19

Statements made for purposes of medical diagnosis or treatment that describe medical history; or past or present symptoms, pain, or sensations; or the inception of; or general character of the cause are exceptions to the rule (FRE 803(4))
Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report was made to a public office pursuant to requirements of law, are also exceptions from the hearsay rule (FRE 803(9)

Answer 19

Two examples of other exceptions

Question 20

The affidavit of the custodian of records allow the health record to be _________.

a. Considered hearsay
b. Admitted into evidence
c. Relevant evidence
d. Disregarded as evidence

Answer 20

Admitted into evidence

Question 21

Requires the original of a document to be produced
Protects against intentional perjury or simple faulty memory regarding the contents of writings, recordings, and photographs
For ESI, evidence rule states that printout or other output readable by sight and shown to reflect the data accurately constitutes an original.
If the original—whether paper or electronic—is lost or unavailable (and proven), a copy (secondary evidence) becomes admissible.

Answer 21

Best Evidence Rule

Question 22

The Best Evidence Rule allows for __________.

a. The jury to decide what is the best evidence
b. Hearsay to be allowed as evidence
c. Only original records to be allowed as evidence
d. Copies of records to be allowed as evidence

Answer 22

Copies of records to be allowed as evidence

Question 23

Refers to certain communications that are secret and cannot be forcibly revealed except under special circumstances
Privilege communication—Shared between two parties:
Husband and wife
Physician and patient
Patient and other health providers

Answer 23

Privilege

Question 24

A person or business who has the power and obligation to act for another individual under circumstances of trust and confidence has the responsibility to protect this individual

Answer 24

Fiduciary

Question 25

Concept of fiduciary duty | To not protect is a breach of fiduciary duty

Answer 25

Protecting privilege communication

Question 26

Tool for protecting patient privacy in the context of litigation Exists via statute in most states Patient (or his/her legally authorized representative) is the holder of privilege, and must assert that privilege in order to prevent his/her medical information from being disclosed in court Exceptions

Answer 26

Patient-Physician Privilege

Question 27

Common exception to the patient-physician privilege is _____, which belongs to the patient - If patient claims damages for physical or mental wrongdoing the waive their right to confidentiality of their information, so defendant can use information to defend self - However, defendant may not be entitled to information not relevant to case

Answer 27

Waiver of Privilege

Question 28

Other waivers of privilege related to public interest are

Answer 28

Blood alcohol tests | Determination of mental competence

Question 29

Physician-patient privilege belongs to the __________. a.  Patient b.  Owner of the medical record c.  Physician d.  Judge

Answer 29

Patient

Question 30

Protects communications made by providers to patients (and perhaps patients’ relatives) from being admitted as evidence in court - Informally referred to “I’m Sorry Laws,” more than 30 states have enacted these protective statutes that vary in scope

Answer 30

Apology Statutes

Question 31

Organization has legal duty to preserve information relevant to potential litigation, watch for litigation triggers - Adverse events - Sentinel events - Birth injuries - Medical device injuries Rely on legal concepts and organizational policies to preserve information

Answer 31

Protection of Evidence

Question 32

Also known as a preservation order, preservation notice, or litigation hold - Issued by court if there is concern -- information may be destroyed in cases of current or anticipated litigation, audit, or government investigation - Individual circumstances of the litigation, i. investigation, or audit may determine the requirements for the legal hold

Answer 32

Legal Hold

Question 33

Intentional destruction, mutilation, alteration or concealment of evidence” relevant to a legal proceeding Legal concept applicable to both paper and electronic records Doctrine that drives the duty to preserve documents in the context of litigation and pending federal and state agency investigations

Answer 33

Spoliation

Question 34

Use same standards for paper records Use software to recover ESI that was deleted Policies and procedures for making changes/corrections to ESI

Answer 34

Prevent Spoliation in EHRs

Question 35

When a legal hold is issued by the court, what action must an organization take? a.  Destroy all records that have been inactive for at least five years b.  Suspend the processing or destruction of the records in question c.  Disclose all requested records to opposing counsel d.  Consult with legal counsel

Answer 35

Suspend the processing or destruction of the records in question

Question 36

Must have knowledge of where information is stored, how long it is kept, and when it may be destroyed, whether information is in paper or electronic form Guidelines must address digital preservation from old to new media or systems Define healthcare provider’s legal health record and establish routine practices for retention and destruction of records

Answer 36

Retention and Destruction of Health Information

Question 37

Plans that address how health information in either paper or electronic format will be preserved in event of a natural or man-made disaster Attention to prevention of loss and restoration of access to records including legal discovery within a reasonable time-frame

Answer 37

Disaster Recovery and Business Continuity

Question 38

Document occurrences that are inconsistent with a healthcare facility’s routine patient care practices or operations Purpose: To document facts of incident so an internal investigation of the incident may be conducted Should not be placed in, nor referred to in a patient’s record Protected by most state laws as privileged information, but court may allow after weighing rights of plaintiff against privilege law or policy

Answer 38

Protection of Related Medical Documentation—Incident Reports

Question 39

The main purpose of an incident report is to do which of the following? a.  Determine who is at fault b.  Document adverse events c.  Deliver sanctions to those at fault d.  Develop a defense strategy

Answer 39

Document adverse events

Question 40

State laws may define scope of peer review activities, and provide privilege protecting records from litigation Whether privilege applies for discovery purposes may depend on case These records do not generally meet the business records hearsay exception for admissibility (are not generated at, or near the time of the event) Often contain inadmissible opinions and conclusions Minutes should reflect objective review; should not detail comments or discussion; should document actions taken; should have limited distribution

Answer 40

Protection of Related Medical Documentation—Peer Review

Question 41

Other documentation that may be sought for discovery or admissibility, although a provider may wish to keep information confidential Hospital committee records (infection control; quality improvement; risk management) Joint Commission survey results Hospital credentialing records Practitioner training manuals

Answer 41

Protection of Other Medical Documentation