HSCI 3200: Health Law: Chapter 4: Legal Proceedings and Evidentiary Rules

Malpractice trends

- difficult to determine exact number because there is no mandatory reporting

- estimated that 1 in 8 medical injuries result in filling lawsuit

substantive law

defines rights and obligations that arise between two or more parties

Procedural law

- court rules that guide a lawsuit from beginning through completion (trial, settlement, or dismissal)

- we will focus on procedural law rather than substantive law

parties to a lawsuit

- plaintiffs

- defendants

- class action

- Pro Se

Plaintiff

party that initiates a lawsuit to enforce his or her rights or another's obligations' there may be more than one

defendants

individual or organization that is the object of the lawsuit, and against whom a lawsuit is brought; there may be more than one

class action

groups of consumers to file lawsuits against a large and generally powerful entity for alleged wrongdoing

Pro Se

Self representation

health information

- Evidence is used to prove or disprove a fact in a case

- Health information is relied on in a variety of legal cases to determine proof and extent of injury

- Federal and state laws provide frameworks for admission of evidence during legal proceedings

- Federal Rules of Evidence (FRE)

- Most states mirror FRE6

custodian of records

- Individual who has been designated as having responsibility for the operational functions related to the development and maintenance of patient records

- Includes care, custody, control, and proper safekeeping and disclosure

- Required by federal and state rules of evidence

- Typically, the Health InformationManagement Director

rules of court

- procedural rules adopted by all courts regulating practice in the court

- rules of civil procedure (most common in healthcare)

- rules of criminal procedures

- rules of evidence (criminal cases)

Bailiff

- Maintains order and decorum and manages schedule of judge

- Assigned to particular court

- Some states required peace officer

lay witness

testimony based on personal observations

Expert witness

testimony based on subject matter expert

complaint

filed by plaintiff

summons

served to defendant

defendant's written response

- Denial of allegations or affirmative defenses

- Make counterclaims against plaintiff

- Cross claim or joinder

- Limited time to file answer (~20 days after service process)

- If defendant doesn't answer, default judgment entered

- May also file motions to dismiss lawsuit or for summary judgment

discovery

- used to obtain information held by other parties to assess strengths and weaknesses in each party's case

- must be relevant information

- must be authenticated with baseline authenticity or trustworthiness

- e-Discovery addressed preservation, collection, and production of electronically stored information

Federal Rules of Civil Procedures

- Selected rules that are most important to health care professionals

- Rule 16 (pretrial conferences)

- Rule 26 (duty of disclosure and deposition)

- Rule 33 (interrogation)

- Rule 34 (production of documents, including business records)

- Rule 35 (physical or mental examinations)

- Rule 36 (requests for admissions)

- Rule 45 (subpoena)

court order

- Mandate by judge to compel testimony or production of documents

- Subject to legal defense

- Failure to comply may result in contempt of court citation and possible jail time

subponena

- Initiated by attorney (not judge) through a court

- Often served via law enforcement or US mail

- Less legal force than court order

- In general, must be accompanied by patient authorization to compel disclosure of health records

- Failure to respond may result in a court order compelling attendance or a contempt of court citation

Types of Discovery

1) depositions

2) Interrogatories

4) Physical/mental examination

5) Production of documents

6) Request for admissions

deposition

oral testimony given under oath outside of courtroom pursuant to subpoena

interrogatories

written questions that must be answered in writing under oath; presented to party/witness designed to gather information=

production of documents

inspection and/or copy of documents or other physical evidence upon written request

physical/mental examination

ordered by court upon party's request with good cause shown

request for admissions

written questions presented to a party designed to obtain admission of a certain fact

Subpoena duces tecum

- Instructs recipient to personally appear with documents in hand

- Documents must be produced as they are kept in the usual course of business

- Shadow record should be exact duplicate of original health record15

Interrgatory

The plaintiff's attorney, representing the patient in a negligence case, asks the following question on an interrogatory questionnaire

response to request

- Do not assume that every discovery request or subpoena is proper or valid

- Improper release of protected health information(PHI) may subject provider to liability

- Subject to privilege

- Protected by strict confidentiality protections, such as substance abuse, mental health, orHIV/AIDS treatment records

- Never ignore a discovery request, subpoena, or court order18

motion to quash

- Formal, written objections to subpoena filed with court asking judge to nullify

- Subpoena fails to provide adequate time for compliance

- Person who is not party is required to travel >100 miles (beyond geographic limits of rule of procedure)

- Requires disclosure of privileged information that is not subject to any exception or waiver

- Undue burden is imposed on person19

Federal Rules of Evidence (FRE)

- rules that govern the admissibility of all evidence, including expert testimony

- there was a recent change that an expert opinion must demonstrate the proffered testimony meets theRule's admissibility requirements by the preponderance of the evidence

- The expert's testimony must remain within the bounds of what can be concluded from the reliable application of the expert's methodology.

warrants and searchers

- Judicial search warrant

- HIPAA does not prevent disclosure of one's health information when it is provided to a government agency or law enforcement agency for investigation of criminal or quas criminal activities

- Warrantless search may be executed only in circumstances where an urgent need for a health record exists, which rarely occurs

legal proceedings trial

- Voir Dire: jury selection

- Burden of proof (belongs to plaintiff)

- Jury receives instructions by judge

- Jury deliberates

- Burden of proof

what are the types of damages?

- nominal

- compensatory

- punitive

nominal

awarded simply to recognize wrongdoing by defendant when there is no substantial injury suffered by plaintiff requiring compensation

Compensatory

- most common and compensate the plaintiff for losses incurred

- economic or non-economic

Punitive

- exceed compensatory damages and punish the defendants

evidence

- Means by which the facts of a case are proved or disproved

- Rules of evidence govern admission of items of proof (direct or circumstantial)

- Must be competent, relevant, and material to be admitted

- Includes oral testimony, written/electronic documents, or physical evidence

types of evidence

- direct

- circumstantial

- demonstrative

- documentary

Direct

offered through witness testimony

circumstantial

evidence not directly from an eyewitness or participant; requires some reasoning to prove fact

demonstrative

items that are illustrative (charts, diagrams, etc)

documentary

evidence in written form, nor oral (letters, records, emails, photo) to prove a fact

admissibility

- Evidence that is allowed to be admitted into court

- Must be relevant and have probative value

Hearsay

Written/oral statement made outside of court that is offered as evidence to prove "the truth of the matter asserted" (FRE 801(a))

- Generally, not admissible as evidence unless one of 23 hearsay exceptions apply

- Health records are considered hearsay

- Not subject to cross examination but can be objectionable32

Hearsay Exemptions

- Person submitting evidence must establish that the medical record was:

1. Made and kept in the ordinary course of business

2. Recorded at or near the time of the event

3. By a person with knowledge of the facts, events, conditions, opinions, or diagnoses appearing in itMust be authenticated (meet foundation and trustworthiness requirements)

Hearsay Exceptions

- Statements made for medical diagnoses or treatments

- Admissions made by one of parties to action

- Threats made by a victim

- Dying declarations

- Statements to refresh a witness's recollection if s/he is unable to remember the facts known earlier

- Spontaneous exclamations Business records

- Certified copies of birth/death certificates

Business Record Exception

- Most commonly used exception to establish accuracy and trustworthiness

- Record made at or near time by, or from, information transmitted by a person with knowledge

- It was kept in the course of regularly conducted business activity

- It was the regular practice of that business activity to make the record

- Can be challenge to authenticate ESI because it can be easily modified

- Metadata and audit trails assist in proving trustworthiness

Best Evidence Rule

- Permits use of duplicates that are authenticated

- Protects against intentional perjury or simple faulty memory regarding the contents of writings, recordings, and photographs

Privilege

- Defined by Federal Rules of Evidence

- Refers to certain communications that are secret and cannot be forcibly revealed except under special circumstances

- Waiver of privilege belongs to patient

- Violation is a breach of fiduciary duty

- Other waivers related to public interest:

- Blood alcohol tests

- Determination of mental competence

- Criminal actions

Apology Statutes

- informally referred to "I'm Sorry Laws"

- Protects communications made by

providers to patients (and perhaps

patients' relatives) from being admitted

as evidence in court

- > 36 states have this statutes

Preservation of Evidence

- A healthcare entity should know what information it has, where it is located, how long it should be retained, and what is needed

- Litigation triggers should lead to preservation of evidence

- Legal/Litigation hold

- Preservation Order/Notice

- Spoliation prevention

Under what circumstance can physician/patient privilege be waived?

???

Legal Hold

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