Technology is changing everything that we do as a nation, including how we litigate. The law, however, has been slow at keeping up with the technological revolution. Nowhere is that more clear than with the move toward electronic medical records (EMRs) and how they are to be used in medical malpractice litigation. According to a recent report on Law.com, there are some important considerations that medical malpractice litigants should be aware of to keep the costs of discovery to a minimum regarding EMRs.
First, the article advises that requests for information should be streamlined. There should no longer be a global request for all relevant information. This is because such a request will produce volumes of information, most of which will not be relevant to the litigation. As such, streamlining the request will only produce those medical records that will assist either side in developing it case for trial or settlement talks.
Second, it should be made clear to the health care provider when it should begin preserving electronic information. This is difficult because e-discovery law currently requires that electronic information be saved when litigation is "reasonably anticipated," which is not always easy to pin point in the health care industry. Each state could possibly consider proposing legislation that would designate when a health care provider should begin preserving all electronically stored information.
Lastly, paper records can be superior to electronic records in some cases, but EMRs can be difficult to reduce to paper. Because of some technological hang up, the way that an EMR appears on the computer screen is not the same as how it looks when it is printed out, making it difficult to analyze in hard copy. Also, providing the EMR in electronic form would not be sufficient because of the software needed to view the record. Most lawyers do not have the software on their office computers and the software is generally not available for retail purchase.