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136 Cards in this Set
- Front
- Back
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the means by which the facts of the case are proved |
evidence |
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refers to the limitations on the ability of parties to discover pretrial info held by another |
discoverability |
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info that is "created, manipulated, communicated, stored, and best is used in digital form, and more widespread use of electronic records |
electronically stored info ESI |
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data about data |
metadata |
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getting the organizations electronic house in order to mitigate risk and expenses. should electronic discovery become an issue, from initial creation of electronically stored info through its final disposition |
info management |
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locating potential sources of electronically stored info and determining its scope, breadth, and depth |
identification |
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ensuring that electronically stored info is protected against inappropriate alteration destruction |
preservation |
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gathering info for further use in the e-discovery process |
collection |
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reducing the volume of info and converting it, if necessary, to forms more suitable for review and analysis |
processing |
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evaluating the info for content and context, including key patterns, topics, people and discussing |
analysis |
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delivering info to others in appropriate forms and using appropriate delivery mechanisms |
production |
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displaying the info before audiences especially in native and near forms to attempt to persuade or elicit further info |
presentation |
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rules that govern civil cases at the trial level in federal court |
federal rules of civil procedures FRCP |
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outline key deadlines that apply to the case, may address the disclosure and discoverability of electronically stored info |
scheduling orders |
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are mandatory disclosures of certain basic info that must be provided before a formal discovery request and should include a copy or description and location of any electronically sorted info that maybe used to support parties respective claims |
initial disclosures |
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EXAMPLE: if an EHR will be used as evidence in a case the ? should describe that record and provide its location |
initial disclosure |
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allows for discovery of ESI to be limited if that info us not reasonably accessible because of undue burden or cost |
reasonable access |
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supports the requirement that very early on in the case, parties must confer with one another about a variety of issues such as the nature of any claims and defenses, settlement possibilities,etc |
discussion between two parties |
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both contemplate the production of ESI |
interrogatories & production of documents |
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a party does not need to produce the same electronically stored info in more than one form |
interrogatories & production of documents
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says a court may not impose sanctions on a party for failing to provide ESI lost as a result of the "routine, good-faith operation of an electronic info system" |
failure to make disclosures |
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allows in cases where large volumes of documents may contain relevant evidence, the testing or sampling of those documents to determine whether relevant evidence exists |
testing or sampling of documents |
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discovery may involve info and data from source systems outside of those which are usually printed or viewed electronically, such as native file formats, computer file, etc |
with ESI (Electronically Stored Information) |
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is potentially open to discovery unless otherwise directed by the court |
all info created in a health record both paper and electronic |
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provides a framework for the discovery go electronic records |
Federal Rules of Civil Procedure (FRCP) |
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Whether or not information may be introduced formally into evidence at trial is called:
a. discovery b. admissibility c. burden of proof d. jury discretion |
admissibility
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The medical record of Kathy Smith, the plaintiff, has been subpoenaed for a deposition. The plaintiff's attorney wishes to use the records as evidence to prove his client's case. In this situation, although the record constitutes hearsay, it may be used as evidence based on the:
a. admissibility exception b. discovery exception c. direct evidence exception d. business records exception |
business records exception
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E-Discovery rules are amendments to the _________ and were created in response to the tremendous volume of evidence, maintained in electronic format, that is pertinent to lawsuits.
a. Federal Rules of Evidence b. State rules of evidence c. Federal Rules of Civil Procedure d. State rules of civil procedure |
Federal Rules of Civil Procedure
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Per the theory of physician/patient privilege, the right to waive the confidentiality of medical information belongs to the:
a. hospital b. patient c. doctor d. personnel of the health information service |
patient
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Metadata is
a. the compilation of all of a patient’s treatment encounters b. relevant only to paper health records c. information about an electronic record d. of no evidentiary value |
information about an electronic record
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A legal hold
a. is a process whereby a court takes custody of a health record during litigation b. is issued by a court if there is concern about destruction of information during litigation c. was abolished by the e-Discovery rules d. is applicable only to electronic records |
is issued by a court if there is concern about destruction of information during litigation
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Authentication of a record refers to
a. establishment of its baseline trustworthiness b. the type of electronic operating system on which it was created c. the identity of the individual who notarized it d. its relevance |
establishment of its baseline trustworthiness
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A health record is representative of what type of evidence?
a. direct evidence b. circumstantial evidence c. demonstrative evidence d. oral evidence |
demonstrative evidence
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The best evidence rule
a. permits copy’s to be substituted in certain circumstances b. prohibits the introduction of photocopies into evidence c. requires the submission of photocopies into evidence d. requires oral testimony instead of documentary evidence |
permits copy’s to be substituted in certain circumstances
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Gloria Kramer files a medical malpractice lawsuit against Dr. Johnson, alleging that he committed negligence in the treatment of her diabetes. Ms. Kramer’s attorney insists that Dr. Johnson cannot speak about of her medical diagnoses because of physician-patient privilege. Ms. Kramer’s attorney:
a. is correct because the physician-patient privilege is absolute b. is incorrect because she placed her medical condition at issue c. is correct because she has not yet signed an authorization for disclosure d. is incorrect because the physician holds the physician-patient privilege |
is incorrect because she placed her medical condition at issue
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From an evidentiary standpoint, incident reports:
a. should not be placed in a patient’s health record b. may be referenced in the patient’s health record c. are universally non-admissible during trial proceedings d. are universally non-discoverable during litigation |
should not be placed in a patient’s health record
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During a trial to determine whether Dr. Smith was liable for medical malpractice, Dr. Smith testified in his own defense. Legally, Dr. Smith’s testimony was:
a. real evidence b. inadmissible c. unreliable d. direct evidence |
direct evidence
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Relevant evidence
a. favors the plaintiff b. favors the defendant c. tends to make the existence of a fact more or less probable d. cannot be prejudicial against either party in a lawsuit |
tends to make the existence of a fact more or less probable
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A hospital employee destroyed a health record so that its contents—which would be damaging to the employee—could not be used at trial. In legal terms, the employee’s action constitutes
a. mutilation b. destruction c. spoliation d. spoilage |
spoliation
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Patient-provider privilege is defined by
a. Federal Rules of Evidence b. state law c. the parties involved in a patient-provider relationship d. none of the above |
state law
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The medical record is admitted into evidence as an exception to what rule?
a. documentary evidence b. best evidence c. hearsay d. disclosure |
hearsay
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The HIM professional may attend legal proceedings and testify as to which of the following?
a. the reason the patient was treated b. the reason the provider should be sued c. the authenticity of the health record d. all of the above |
the authenticity of the health record
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A subpoena duces tecum compels the recipient to do which of the following?
a. serve on a jury b. answer a complaint c. produce documents d. none of the above |
produce documents
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Whether or not information may be introduced formally into evidence at trial is which of the following?
a. discoverability b. admissibility c. burden of proof d. case law |
admissibility
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Which of the following is issued by the court if there is concern that information may be destroyed in cases of current or potential litigation?
a. spoliation b. subpoena c. court order d. legal hold |
legal hold
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A statement made to an attorney, psychologist or clergy that is protected from being revealed, even in court, is what type of communication?
a. confidential b. privileged c. authorized d. protected |
privileged
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When determining whether or not evidence should be admissible in a court proceeding, the judge bases his/her decision by applying which of the following?
a. best evidence rule b. hearsay exception c. business records exception d. all of the above |
all of the above
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When determining whether or not health records are privileged, the HIM professional should refer to which of the following?
a. HIPAA b. Best Evidence Rule c. state statutes d. All of the above |
state statutes
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Which of the following is not an area that the chapter describes as a difference between electronic and paper records?
a. duplicability b. persistence c. confidentiality d. metadata |
confidentiality
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Which of the following employs scientific methods to analyze sources of electronic data to determine if evidence was accessed or destroyed?
a. discovery b. computer forensics c. search and seizure d. coding |
computer forensics
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admissiblilty
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Whether or not information may be introduced formally into evidence at trial
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best evidence rule
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permits copies to be substituted in certain circumstances
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Business Records Exception
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The medical record of Ms. Smith (plaintiff), has been subpoenaed for deposition. Her attorney wishes to use the records as evidence to prove the case. Although the record constitutes hearsay, it may be used as evidence based on
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Circumstantial (indirect) evidence
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defined "evidence in a trial which is not directly from an eye witness or participant and requires some reasoning to prove a fact"
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demonstrative evidence
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health record is representative of this type of evidence
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Demonstrative (real) evidence defined
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actual objects, pictures, models and other devices that are supposedly intended to clarify the facts for the judge and jury (how an accident occurred, actual damages, medical problems, or methods used in committing an alleged crime
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during a trial to determine whether Dr. S was liable for medical malpractice, Dr. S testified in his own defense. Legally, Dr. S's testimony was:
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direct evidence
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direct evidence defined
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"real, tangible or clear evidence of a fact, happening or thing that requires no thinking or consideration to prove its existence"
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discoverability
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the limitations on the ability of parties to discover pretrial information held by another
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when determining whether or not evidence should be admissible in a court proceeding, the judge applies the following as a basis of his/her decision
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best evidence rule, hearsay exception, business records exception
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E-Discovery
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the access, use and preservation of information, data and records created or maintained in electronic media
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electronically stored information (ESI) defined
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information "created manipulated, communicated, stored and best used in digital form, and more widespread use of electronic records the concept of E-Discovery has evolved"
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ESI
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obtained more frequently through discovery than it was in the past. E-discovery includes Computer Forensics
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ESI lost as the result of a good-faith operation
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under FRCPs, court-imposed sanctions are not permitted in a party fails to provide
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evidence
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the means by which the facts of a case are proved or disproved
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Federal Rules of Civil Procedure
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amended in 2006 to address the discovery of electronic data
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E-discovery rules are amendments to the:
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Federal Rules of Civil Procedure
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hearsay
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the medical record is admitted into evidence as an exception to what rule?
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incident reports
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from an evidentiary standpoint, should not be placed in a patient's health record
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intentional destruction of evidence
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spoliation
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legal hold
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issued by the court if there is concern that information may be destroyed in cases of current or potential litigation
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legal hold requires
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preservation of both paper and electronic records
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Metadata
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Information about an electronic record
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much documentation in the health record
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hearsay
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often enables health records to be admitted as evidence
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Business records exception
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The right to waive the confidentiality of medical information belongs to the
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patient
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peer review
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involves activities undertaken to ensure the provision of quality care
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physician-patient privilege
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common tool for protecting privacy in the context of litigation and also used to encourage full disclosure of relevant information by patients to their physicians
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the physician-patient privilege may be waived when
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a party claims damages for physical or mental injury, he or she places the extent of that physical or mental injury at issue and waives his or her statutory right to confidentiality
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relevant evidence
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tends to make the existence of any fact more or less probable than it would be without that evidence
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a hospital employee destroyed a health record so that its contents (which would be damaging to the employee) could not be used at trial. the employee's action constitutes:
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spoliation
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usual course of business
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documents must be produced in response to subpoena as they are kept in the
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Apology statutes
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related to privilege (which belongs to the patient) that protect communications made providers to patients (and perhaps patients' relatives) from being admitted as evidence in court.
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Authenticated evidence
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is presented if there is "evidence sufficient to support a finding that the matter in question is what its proponent claims". Evidence that appears to be relevant and has been shown to have a baseline authenticity or trustworthiness.
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Business records exception
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a major exception to the prohibition against using hearsay as evidence, a record in any form, of acts, events, conditions, opinions, or diagnoses is not hearsay fit meets the following requirements: A rule under which a record is determined not to be hearsay if it was made at or near the time by, or from information transmitted by, a person with knowledge; it was kept in the course of a regularly conducted business activity; and it was the regular practice of that business activity to make the record
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Circumstantial evidence
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"evidence in a trial which is not directly from an eyewitness or participant and requires some reasoning to prove a fact"
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Demonstrative evidence
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actual objects, pictures, models, and other devices that are supposedly intended to clarify the facts for the judge and jury- how an accident occurred, actual damages, medical problems, or methods used in committing an alleged crime.
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Direct evidence
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"real, tangible or clear evidence of a fact, happening or thing that requires no thinking or consideration to prove its existence"
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Discoverability
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in general refers to the limitations on the ability of parties to discover pretrial information held by another. Discover involves a pretrial exchange of information between the parties through depositions, interrogatories, requests for production of documents, physical and mental examinations of parties, and requests for admission.
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e-Discovery
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pretrial legal process used to described the methods by which parties will obtain and view electronically stored information. Involving the access, use, and preservation of information, data and records created or maintained in electronic media
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Electronic health records (EHRs)
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not uncommon in legal cases that an organization will be asked to produce ESI that includes any information medical images, e-mail communications, medical bills, and other types of ESI for one or more patients and over a number of years of care. (a computerized record of health information and associated processes; an electronic record of health-related information on an individual that conforms to nationally recognized standards and that can be created, managed, and consulted by authorized clinicians and staff across more than one healthcare organization).
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Electronically stored information (ESI)
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with increasing use of, which is information created, manipulated communicated, stored, and best used in digital form through the use of computer hardware and software, and more widespread use of electronic records the concept of electronic discovery (e-discovery) has evolved.
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Evidence
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the means by which the facts of a case are proved or disproved, may be presented in the form of oral testimony, contained in written documents, or presented through pictures and objects. To manage how evidence is used during cases, both federal and state laws provide frameworks that govern the admission of evidence during litigation.
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Federal Rules of Civil Procedure (FRCP)
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rules that govern civil cases at the trial level in federal court, include requirements specifically tailored to the discovery of electronic data.
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Federal Rules of Evidence
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if a case is presented in federal court because it involves a federal law or if the parties are from different states. If case is tried in state court, then the rules of evidence for that particular state apply. State rules of evidence are often similar to the federal rules, although the degree of similarity varies from state to state.
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Hearsay
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a written or oral statement made outside of court that is offered in court as evidence to prove "the truth of the matter asserted" and not admissible as evidence unless one of several hearsay exceptions applies.
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I'm Sorry Laws
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informally referred over 30 states have enacted these protective statues that vary in scope. Such as Apology Statutes, state laws that to varying degrees, deem apologies by healthcare providers to patients and their relatives following unanticipated medical outcomes to be inadmissible as evidence in court
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Incident reports
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the means through which occurrences that are inconsistent with a healthcare facility's routine patient care practices o operations are documented, the purpose is to document the facts of the incident so that an internal investigation of that incident may be conducted. Main goals: Describe the unexpected occurrence or incident, Provide the foundation for an investigation of the occurrence or incident, Provide information necessary for taking remedial or corrective action, and Provide data useful for identifying risks of future similar ocurrences
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Legal hold
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issued by the court if there is concern that information may be destroyed in cases of current or anticipated litigation, audit, or government investigation. A court order that suspends the processing or destruction of paper or electronic records; (known as a preservation order, preservation notice, or litigation hold).
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Metadata
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a result of ESI that is data about data that resides outside the record that is normally released upon request, can provide valuable information to attorneys involved in litigation.
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Peer review
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involves a broad range of activities undertaken by peer review committee to ensure that a facility provides quality care and may include such activities at the review of quality and safety issues and determinations of medical staff credentials.
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Physician-patient privilege
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a common tool for protecting that privacy in the context of litigation, while it varies from state to state and is not provided for by every state, generally legally protects confidential communications between physicians and patients related to diagnosis and treatment from being disclosed during g civil and some misdemeanor litigation.
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Sedona Conference
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a nonprofit research and educational institute dedicate to the advanced study of law and policy.
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Shadow record
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a duplicate record kept for the convenience of the provider or facility and should be an exact duplicate of the original health record and contain no documentation tat is not in the original record.
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Spoliation
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"the intentional destruction, mutilation, alteration or concealment of evidence" relevant to a legal proceeding and a legal concept applicable to both paper and electronic records.
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Subpoenas
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a legal document that compels an individual to give testimony or commands the production, inspection, or copying of books, documents ESI, or other tangible items and may be issued in both criminal and civil matters by both state and federal courts as well as administrative agencies.
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Waiver of privilege
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most common exceptions involves, "when a party claims damages for physical or mental injury, he or she places the extent of that physical or mental injury at issue and waives his or her statutory right to confidentiality to the extent that is necessary for defendant to discover whether plaintiff's current medical or physical condition is the result of some other cause"
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Weight of the evidence
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in cases, courts generally find that those errors or inconsistencies relate, not its admissibility. the amount of consideration that judge or jury gives a particular record or piece of evidence when deciding the factual issues of the case.
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(EDRM) Electronic Discovery Reference Model
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-defines the process of e-discovery by using terminology that is meaningful to both healthcare providers and vendors.
–Helps vendors map their products and services to steps in the e-discovery process so that they can efficiently locate and prepare relevant electronic information |
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Information Management Reference Model (IMRM)
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a project designed to develop common references for stakeholders including information technology, legal, business, and health information management professionals.
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interrogatory
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A written set of questions requiring written answers from a plaintiff or defendant under oath.
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Amendments to Federal Rules ofCivil Procedure (FRCP)
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•Govern civil cases at the trial level in federal court amended to specifically address discovery of electronic data
•Encompass11 different categories and 86 rule sets •Provide for early involvement of court in managing e-discovery and altering the process of when and how courts make arrangements for discovery of ESI |
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T/F
Health information is important as evidence in many types of civil and criminal cases. |
True
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T/F
In state court, a state’s rules of evidence will determine whether a piece of information is discoverable. |
True
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T/F
Electronically stored information is now obtained more frequently through discovery than it was in the past. Electronic discovery includes computer forensics. |
True
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T/F
E-mail can generally not be sought as part of the electronic discovery process. |
False
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T/F
The Federal Rules of Civil Procedure were amended in 2006 to address the discovery of electronic data. |
True
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T/F
Under the Federal Rules of Civil Procedure, court-imposed sanctions are not permitted if a party fails to provide electronically stored information lost as the result of a good-faith operation. |
True
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T/F
In general, documents must be produced in response to a subpoena as they are kept in the usual course of business. |
True
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T/F
A hybrid record is a fully electronic record. |
False
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T/F
A legal hold requires the preservation of both paper and electronic records. |
True
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T/F
Spoliation is the accidental destruction of evidence. |
False
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T/F
Organizations with electronic information should develop guidelines to identify where information may be hidden or not readily apparent. |
True
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T/F
Relevant evidence will always be admitted into evidence. |
False
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T/F
Circumstantial evidence requires reasoning to prove a fact. |
True
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T/F
Testimonial and documentary evidence may be combined during a trial. |
True
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T/F
The best evidence rule prohibits the use of a duplicate record in lieu of the original. |
False
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T/F
Much documentation in the health record is hearsay. |
True
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T/F
The business records exception often enables health records to be admitted as evidence. |
True
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T/F
The physician-patient privilege is used to encourage full disclosure of relevant information by patients to their physicians. |
True
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T/F
It is the physician who holds the physician-patient privilege. |
False
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T/F
Incident reports are created for patient treatment purposes and should be a part of the health record. |
False
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T/F
State law may protect incident reports from being admitted into evidence. |
True
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T/F
Peer review involves activities undertaken to ensure the provision of quality care. |
True
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T/F
Plaintiffs commonly attempt to discover and admit peer review records into evidence during negligence cases against health care providers. |
True
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T/F
The physician-patient privilege may be waived when a party claims damages by the physician and puts his physical or mental condition at issue. |
True
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