Legal consequences abound at every corner in healthcare. Each month this blog discusses examples of what those consequences can be.
What might happen when a healthcare provider is asked to produce a large volume of electronic patient records at great expense? In Duffy v. Lawrence Memorial Hospital, No. 14-cv-2256-SAC-TJJ (D. Kan. Mar. 31 2017), the court addressed a request by the defendant hospital to limit production in response to demands made by the plaintiff, a registered nurse, against the hospital.
The plaintiff in Duffy alleged that the hospital had violated the False Claims Act by “submitting or causing to be submitted false claims for reimbursement from Medicare and from Medicaid, and by making false certifications upon which payments from the federal government were based” in the second amended complaint filed June 16, 2015.
In the course of discovery, the plaintiff demanded production of various emergency room-related records for “patients 18 years and older” as well as “logs or other documentation of *** patients presenting to LMH [the defendant] with chest pain or acute myocardial infarction.” In response to these demands—and an order directing production within 14 days—the hospital “determined that 15,574 unique patient records would have to be located and gathered” and that its personnel would have to go into the hospital’s electronic records system and review each patient’s charts. Moreover, the hospital “rolls its patients’ Emergency Room visit records into their inpatient or observation visits, making it impossible to electronically segregate the Emergency Room portion from the hospital-based portion of any visit.” Based on a projection of the number of employees who would have to be dedicated to the task of review, the hospital estimated its cost to be $196,933.23. Moreover, to be HIPAA-compliant, personal confidential information would have to be redacted from any production at an additional estimated cost of $37,259.50. Based on these numbers, the hospital asked the court to modify its order and to limit production to a “random sampling of 252 patient records plus five spares” based on the hospital’s use of a statistical tool known as RAT-STATS, a “primary statistical tool” created by the Department of Health and Human Services’ Office of the Inspector General and made available to healthcare providers. The plaintiff objected and argued, among other things, that redaction was unnecessary because a protective order was already in place that allowed the records to be designated as “confidential.”
How did the court resolve this dispute?
After rejecting procedural arguments made by the plaintiff the court granted the defendant the relief it sought. First, the court recognized its obligation to “secure the just, speedy, and inexpensive determination” of the litigation imposed by Rule 1 of the Federal Rules of Civil Procedure. Next, the court found that statistical sampling was justified by the time and expense of a full production and recognized that a manual search for and review of the records meant that “the element of human error would be a realistic factor.” Third, the court found that the use of RAT-STATS would not prejudice the plaintiff. The plaintiff had offered neither an objection to or criticism of the tool. The court rejected the plaintiff’s argument that allowing the hospital to use RAT-STATS would be “akin to giving her a raffle ticket” because the plaintiff “did not explain the analogy, nor is the similarity immediately apparent.”
What lessons can be drawn from Duffy? The hospital offered proof through two affidavits of estimated costs. Adequate proofs are vital whenever a party challenges a discovery demand on grounds of undue cost. Second, courts are willing to entertain the use of automated methodologies to sample and search large volumes of electronic records. As volumes and varieties of electronic information increase healthcare providers should be prepared to address solutions such as that approved by the court in Duffy.
**Editor’s note: The views expressed in this column are those of the author alone and should not be interpreted otherwise or as advice.