States are starting to enact regulations on the use of electronic data in medical liability cases, American Medical News reports (Gallegos, American Medical News, 9/17).
Experts have noted that "e-discovery" is becoming a new trend in lawsuits against physicians.
E-discovery refers to the practice of attorneys seeking access to electronic health records and other forms of digital data as they build a case against a physician (iHealthBeat, 3/5).
In 2006, the federal court system developed the first set of regulations governing requests for electronic data. However, those rules apply only to federal court cases, which rarely handle medical liability issues.
State Actions on E-Discovery
More than 30 states have enacted regulations on e-discovery. The regulations primarily deal with the process for requesting and providing electronic documents.
Most state regulations allow physicians to challenge e-discovery requests if they can prove that the request is unreasonable because of the expense or because carrying out the request would cause undue burden.
Challenges for Physicians
Some attorneys say that state e-discovery rules have flaws that create challenges for physicians.
Jason Cashio -- a Louisiana-based medical liability defense attorney and partner at the law firm Kean Miller -- said that Louisiana physicians lack legal protection if they inadvertently release protected data while answering an e-discovery request.
Clifford Rieders -- a Pennsylvania-based medical liability trial attorney and former president of the Pennsylvania Trial Lawyers Association -- said that state and federal e-discovery regulations do not provide a framework to promote the consistency, interoperability and usability of electronic evidence.
Recommendations for Physicians
To prepare for medical liability cases, experts recommend that physicians learn about the e-discovery rules in their state.
Experts also recommend that health care providers develop policies about preserving electronic records and communicate such policies to stakeholders (American Medical News, 9/17).