The debates concerning President Obama’s plan to computerize medical records within 5 years have tended to focus on a few key issues. Those in favor of the plan suggest that it will create jobs, improve treatment, reduce errors, and reduce costs. Those opposed argue that it will be too costly and burdensome to implement and that it will be compromise the security of patients’ private information. But what about the effect on e-discovery?
As Craig Ball notes on Law Technology News’ EDD Update blog, "medical records are evidence." They are often sought and produced by parties to all kinds of lawsuits, including cases involving malpractice, personal injury, insurance disputes, employment law issues and disability claims. Because medical records are evidence, digital medical records will be subject to the rules and procedures regarding electronic discovery.
If you don’t immediately catch the significance of the proposed change in terms of litigation expenses consider this: Assuming you knew what you were looking for, how long would it take you to read several boxes full of your doctor’s hand-written notes written on whatever form your doctor happened to be using at the time? Compare that to the amount of time it would take you to run a keyword search of a single field (e.g. “Prescriptions”) of several uniform digital forms. If you were billed for the time spent running the searches, for which would you rather pay?
In his post, Mr. Ball, a computer forensic expert and e-discovery consultant, correctly points out that currently, the fees associated with collecting, reviewing, cataloging and labeling hard-copy medical records can often represent a significant litigation expense. In part, the fees are high because the records are often incomplete, irregular and not readily-accessible. Mr. Ball sees the change to computerized records as an opportunity to fix these problems. He pleads with the Administration to adopt policies and procedures that require complete, uniform, readily-available records.
Admittedly, electronic discovery is not cheap. And in the hypothetical suggested above, you would likely have to pay a vendor to process the digital forms or obtain software to run the proposed search. But, if computerized medical records are the wave of the future, as an associate who spends at least one day per week reviewing documents, I sincerely hope Mr. Ball gets what he’s asking for: a considered response to the e-discovery issues concerning digital medical records.