Chapter 5 Test 2 Flashcards
Means by which facts of a case are proved or disproved
Evidence
Evidence may be presented in these forms:
Oral testimony
Contained in written documents
Presented through pictures and objects
These federal and state laws govern admission of evidence during litigation
Federal Rules of Evidence (FRE)
State laws similar to FRE
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)
Health Information
What are the types of evidence?
Direct
Demonstrative
Documentary Evidence
Circumstantial
Real, tangible, or clear evidence of a fact, happening, or thing that requires no thinking or consideration to prove its existence
Direct
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
Demonstrative
Evidence in written form, not oral, original records, letters, emails, photos, use to prove a fact
Documentary evidence
Evidence that is not directly from an eyewitness or participant, and requires some reasoning to prove a fact
Circumstantial
Governed by state and federal rules of evidence
- Admissibility
- Hearsay
- Business records exception
- Best evidence rule
- Privilege
Evidentiary Rules
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
Relevance
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”
Admissibility
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
Authenticated Evidence
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
All of Barbara’s health records pertaining to the laser use during her cosmetic surgery
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
Hearsay
Spontaneous exclamations
Dying declarations
Business records exception (next slide)
Statements made for medical diagnoses or treatments
Examples of hearsay exceptions
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
Business Records Exception
There are ______ other hearsay exceptions based on Federal Rules of Evidence
23
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)
Two examples of other exceptions
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
Admitted into evidence
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.
Best Evidence Rule
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
Copies of records to be allowed as evidence
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
Privilege
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
Fiduciary
Concept of fiduciary duty
To not protect is a breach of fiduciary duty
Protecting privilege communication
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
Patient-Physician Privilege
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
Waiver of Privilege
Other waivers of privilege related to public interest are
Blood alcohol tests
Determination of mental competence
Physician-patient privilege belongs to the __________.
a. Patient
b. Owner of the medical record
c. Physician
d. Judge
Patient
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
Apology Statutes
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
Protection of Evidence
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
Legal Hold
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
Spoliation
Use same standards for paper records
Use software to recover ESI that was deleted
Policies and procedures for making changes/corrections to ESI
Prevent Spoliation in EHRs
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
Suspend the processing or destruction of the records in question
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
Retention and Destruction of Health Information
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
Disaster Recovery and Business Continuity
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
Protection of Related Medical Documentation—Incident Reports
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
Document adverse events
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
Protection of Related Medical Documentation—Peer Review
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
Protection of Other Medical Documentation
