1. Review for Substance
After obtaining the medical records, you should have a nurse paralegal review them and prepare a medical chronology report. A nurse paralegal has experience-based knowledge that allows them to easily navigate through the records and prepare a more detailed analysis than someone with no medical background. This is highly effective when, often times, medical records can contain scores or hundreds of relevant data points in a lawsuit. Moreover, a nurse paralegal’s specialized experience helps to identify irregularities in the delivery of patient care. A thorough medical chronology report will help identify missing records, illegible records, records that are suspicious, identify potential care received by another treating physician, and more importantly, aid in identifying medical experts needed to support or defend against a claim.
2. Review for Confidentiality or Other Legal/Privacy Implications
Now that you understand the substance of the documents, it is time to ensure that certain documents are not produced. For example, peer review documents and medical records from a different provider other than your client should be pulled. You should also consider whether there is a need for a protective order to be in place prior to disclosure.
Moreover, in many jurisdictions, medical records containing information regarding fetal heart monitoring, HIV testing, STD screening, and photographs or video may require a specific and distinct type of request per federal or state regulations. That said, be sure to review and analyze the medical records request and that the disclosure of said records is HIPAA compliant.
3. Always Bates Stamp
An often-overlooked step when producing medical records is Bates stamping them prior to disclosure. Bates stamping the medical records yields a valuable benefit to your team. Organizing the medical records in this way enables everyone to pinpoint litigation-critical information in the records more quickly. This is especially helpful when utilizing these documents during a deposition or trial. Remember to routinely update the production log with Bates ranges so that every member of the litigation team is aware of what has been produced and to whom it has been sent.
4. Physical Production v. Electronic Production
Technology is rapidly changing the way we think about producing electronically stored medical records during discovery. In Branhaven, LLC v. BeefTek, Inc., 288 F.R.D. 386 (D. Md. 2013), the court applied a paper model of discovery method to electronically stored information (ESI). Specifically, it required the conversion of plaintiff’s emails (i.e., ESI) into tagged image file format (TIFF) with Bates-numbers. Because the plaintiff produced the emails in PDF format without Bates-numbers instead, the court granted financial sanctions against the plaintiff and plaintiff’s counsel.
But this cautionary tale can be easily avoided. You may not need to convert e-discovery into PDF or TIFF format at all. This is because ESI contains a digital fingerprint, i.e., a hash value. This is a unique encryption code that is distinct to every file stored on an electronic device. A hash value contains thirty-two characters that may appear like 73051115256g1fa24e4bc42211f54eb4. Rather than determining how to convert ESI into a static image, the hash code is a seamless method for identifying one and only one document for a given device. Consider this: the producing parties can jointly develop a spreadsheet alongside the ESI each party produces that contains links to each file with its unique hash value. This will eliminate any doubt as to what was produced, when it was produced, and importantly, save you and the client time and money.
5. Send Password Protected
Now that the medical records are prepared for production, it is time to send them to the requesting party. One important security measure is password encrypting the medical records. This makes it much more difficult for the unauthorized access of the records. More importantly, be sure to send the password in a separate email. This added layer of security ensures that the records cannot be accessed in the event they are lost or stolen in transit.
Overall, the review and disclosure of medical records in a lawsuit is a vital step in any matter and requires attention to detail.
