Birth Injury eDiscovery Tips
Birth injury cases are difficult enough due to the nature of the events. From an electronic discovery perspective, these cases can be complex due to an extended discovery timeline and the probability that several EHR systems were involved. EMR Discovery supports plaintiff attorneys with eDiscovery cases and has compiled a list of birth injury-specific considerations.
Preservation letter: If you are waiting to file or request discovery until the end of the Statute of Limitations, you should consider sending a preservation letter. Some states have a 10-year Statute for minors however, some federal requirements mandate only 5 years of data retention for hospitals. This disparity clearly causes concerns for discovery preservation. Hospitals typically upgrade their system versions or move to completely different vendors in that time period. Additionally, hospitals may have internal automatic archival or destruction policies that differ from federal or state recommendations. If the data is not preserved today and is automatically destroyed before the case is filed, there is a slim chance this data can be restored.
Perinatal system identification: The Labor & Delivery (L&D) department may use a different system than the hospital’s main electronic health record (EHR). Popular perinatal systems include GE Centricity Perinatal, Philips IntelliSpace Perinatal, NaviCare WatchChild and Obix. These systems may follow different naming conventions depending on the version, vendor company hierarchies and M&A activity. GE Centricity Perinatal may be referred to as the acronym GE CPN, while the NaviCare WatchChild product may be referred to by company that most recently acquired them, PeriGen, or their PeriCalm and PeriWatch solutions. A hospital can choose specific products from each vendor and deploy them for their unique processes. For instance, a hospital may integrate GE Centricity Perinatal with their Epic EHR so that the patient’s vitals appear on the Epic flowsheets. Hospitals frequently use different systems to chart. For example, L&D nurses often chart in the perinatal system while the OB/GYN charts in the EHR. Each system has its own reporting and audits that can be customized by hospital. Understanding the systems involved with the patient’s care can lead to significant discovery that would not otherwise be realized.
eFM (electronic fetal heart rate monitoring): It is important to obtain the continuous electronic fetal heart rate monitoring strips that include telemetry, alarm information, annotations, on/off details, and integrations with other systems. A paper version may not include this level of detail, may have poorer quality, and can be less reliable. eFMs can sometimes provide additional reports, like vitals trending.
Mom & baby’s records: Birth trauma cases can be complicated in that they typically deal with medical records for two individuals. The point when the hospital creates a separate record for baby can vary. The pre-natal events, admission to labor & delivery, scheduling a cesarean section, initiating operating room procedures, presence of a neonatologist, or NICU admission could all trigger a separate record for baby. Often, baby’s information will display on mom’s record. It is important to validate that there are no additional medical record numbers erroneously created for mom or baby, as they could contain additional information. Additionally, comparing any redundant information across records can help create a cleaner timeline or raise questions that can be posed to defense.
Communications & Location: There are many other electronic discovery considerations beyond the EHR, perinatal system, and eFM. Understanding where providers were located and how nurses were communicating with them may be critical depending on the case. Specific discovery can help identify whether providers were accessing records remotely, how many other patients were under their care, and how they were receiving updates from staff during key times. Badge logs can place the care team in certain rooms or reveal supply closet access, while track boards can show L&D department capacity and acuity during the event.
Data custodians: Data custodians can be the missing link in attorney correspondence about the electronic discovery identification phase. These are the individuals at the hospital, or provided by a third party, that are actually producing the requested data. In order to obtain electronic discovery and ensure it is responsive, these individuals should be identified and included in discussions. They can quickly resolve any issues regarding the ability to produce certain requests, or in what format it can be provided. It is important to have a familiarity with the systems and production capabilities in these discussions and having a consultant or expert on hand can help. The Chain of Custody is a similar concept, where the person producing the data includes details about the production, ensuring that the discovery produced by the Custodian is the same once it reaches the plaintiff attorney. For example, if the data custodian produces an audit trail in excel format, the chain of custody will indicate this. If the plaintiff attorney receives a scanned PDF of the audit trail instead, the Data Custodian and Chain of Custody will easily identify this oversight made by the defense.
Tracking down the appropriate systems, knowledgeable individuals, and responsive discovery can be challenging. To become more comfortable with electronic discovery, a consultant can help plaintiff firms throughout the discovery process by overcoming excuses from the defense and interpreting complex information.