Preserving Medical Records
If you receive documentation from an attorney (or even a patient) suggesting that a lawsuit is on the horizon, such as a letter of representation, a demand letter, or a summons and petition, it is imperative that you take proactive steps to ensure that the all medical records are protected. When litigation is threatened, you should sequester and preserve anything that might be relevant to the potential proceedings. In the “good old days,” this meant securing the paper chart in a locked, secured area. Now things are more complex and likely require that the EMR be electronically sequester or secured so accidental modifications or deletions do not occur.
The scope of discovery in a medical malpractice case is often broad. A plaintiff’s attorney will argue they are entitled to discover any matter that bears on, or that could reasonably bear on any party’s claim or defense. Therefore, in determining what records to preserve, you should err on the side of caution and over-inclusivity. Once all potentially relevant materials are identified, they should be compiled and sequestered. We recommend pulling that materials onto a separate thumb drive, data disc, or even printing out a hard copy. Sequestering the materials protects against accidental or intentional deletion or alteration of records.
We cannot stress enough how important it is that the materials be preserved in a complete and unaltered state. A provider can be penalized in a malpractice case for failing to preserve accurate and complete medical records. In certain circumstances, a court could sanction a party for failing to preserve evidence. In more drastic circumstances, the negligent or intentional alteration or deletion of medical records could open a provider up to punitive damages or personal liability. Altered or deleted medical records can act as a smoking gun and force a medical professional to settle for much more than the case is otherwise worth.
In short, we recommend our providers have in place a procedure for preserving and sequestering all potentially relevant medical records in the event of potential litigation.