Healthcare services frequently come under fire in the United States. One study by Johns Hopkins named medical errors a leading cause of death in the country. Women and BIPOC have also called out healthcare facilities for the tendency of providers to overlook their symptoms and allow conditions to go untreated for several years. These and several other factors compound to create an environment with a high risk of litigation and the need to comply with eDiscovery requests.
eDiscovery is a crucial component of the modern litigation process. The Federal Rules of Civil Procedure were amended in 2006 to require that parties preserve electronically stored information that could be relevant to a case.
Healthcare providers most often come to mind, but any organization could face a request for electronic documents. Consider the following examples.
A health insurance company could receive a request to produce records of claims filed by a patient. These records could support allegations of negligence or refute them. Insurance companies commonly receive these requests during bad faith insurance claims.
A hospital could receive a request to produce records related to a specific doctor, nurse or patient. These records most often pertain to allegations of medical errors or negligence. Sometimes they relate to the performance record of a particular past or present worker.
A private practitioner could receive a request to produce records related to a specific patient. These records could support or negate allegations of negligence or malpractice. Insurance companies could also bring cases against practitioners for prescribing unnecessary procedures.
A company that provides medical billing and coding services could receive requests for records for a patient, covering a specific period, related to a particular insurance provider or from a specific worker. These records could support or negate allegations of fraud or overbilling.
Entities can face severe consequences for not complying with an electronic discovery request. The court can sanction a party that does not produce the requested information. The sanctions can take several forms:
In some cases, failing to comply with an eDiscovery request can also be considered contempt of court. This is a severe offense that can result in jail time. It is almost always in the best interest of all parties involved to cooperate with the court. Note that the more prolonged litigation cases are, the higher the final costs.
The best way to comply with electronic discovery requests is to have a plan long before receiving a request. This plan should include the following considerations.
The first step is to inventory all of your electronic data. This includes data stored on computers, servers, smartphones and other devices. It also contains data stored in the cloud. You should know where this data is located and who has access to it.
Once you know what you have, you need to organize it. This will make it easier to find relevant data for a particular case. One way to do this is to create a document retention policy. This policy should specify how long to retain different data types and where to store them.
Designate a point person to handle all requests. This person should have the authority to decide on which information to produce. He or she should also be familiar with the rules and procedures for electronic discovery.
Several regulations apply to healthcare organizations, such as HIPAA and HITECH. These regulations impose restrictions on the use and disclosure of protected health information. Be sure to review these regulations before creating your document retention policy.
Several software applications can help you manage and organize your data. These applications can also help you search for relevant information. For example, Microsoft offers Purview eDiscovery solutions. The features vary based on the Microsoft Office 365 subscription your business holds.
Train all employees on the Importance of preserving electronically stored information. Employees should know what types of information could be relevant to a legal case. They should also know how to store this information so it can be easily found and produced.
If you are unsure how to comply with electronic discovery requests, seek help from an attorney. An attorney can help you create a document retention policy that complies with all applicable laws and regulations. An attorney can also help you prepare a strong defense.
Electronic discovery is an integral part of the modern litigation process. Healthcare organizations must ensure that they can comply with these requests. This may require digitizing large volumes of data and finding the proper storage solutions. Physical storage is unlikely to meet its needs.
Consequently, more healthcare providers are migrating to the cloud. Will yours? Cloud migration provides access to the best eDiscovery tools and storage options. Contact Cloudficient to learn more.
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If you would like to learn more about how to bring Cloudficiency to your migration project, visit our website, or contact us.