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David KearneyMS, PMP, CEDS

Legal Medical Record: Mystery Novel or Reference Guide?

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Topics Covered

• Legal Medical Record Overview• Legal Process of Litigation/Anticipated

Litigation• Data & Information Governance• Response & Preparedness• Tips• Summary

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Legal Medical Record Overview

• Electronic Health Record• Legal Medical Record• Designated Record Set

Why?What is the Difference?

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Legal Medical Record

• “generated at or for a healthcare organization as its business record and is the record that would be released upon request”

American Health Information Management Association (AHIMA)

• Each organization must identify the content required for its own legal medical record as well as the standard for maintaining the integrity of the content

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Electronic Health Record

• Document at Point of Care• No concept of completeness• For Clinical decision support• Focus – present/near future• Contains Discrete data (data

centric)• On-going• Authentication on entry• Continually modifiable• Not designed to distribute• Some tracking

Legal Medical Record

• May Document Post Delivery of Care

• Concept of Completeness• For Justification/analysis• Focus – past• Contains Documents/Pictures

(document centric)• Episodic • Authenticated by signature• Unalterable• Produce consistently• HIPAA “trackable”

EHR vs LMR

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• EDRM Overview - Info Management is Key• Includes Electronic and Paper Records (Evidence)• Process of Evidence• Preservation• Consistency of Process• Value of Data/Risks of Data• Penalties• Reasonableness

Legal Process of Litigation/Anticipated Litigation

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Information Management

Addressed at the Far Left of the Electronic Discovery Reference Model

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Information Management

“Part of the reason eDiscovery is so expensive is because companies have so much data that serves no business need. … Companies are going to realize that it’s important to get their information governance under control to get rid of the data that has no business need … in ways that will improve the company's bottom line…” — U.S. Magistrate Judge Andrew J. Peck, CGOC Faculty Member, in a video interview courtesy of JD Supra Law News, February 4, 2013.

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Data & Information

• Data Growth• Data Sources• Information Governance• Developing Data Management Practices

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Response & Preparedness

• Why• How• Results

Proactive vs. ReactivePlanning vs. Panic

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Tips• Assemble Team• Know Where Your Data Is• Assess Risks – Legal Dept.

– Business needs– Legal holds– Regulatory obligations

• Develop Plan - Collaboration• Document Plan• Implement Plan• Follow Plan – Consistency is Key – Not following a plan is

worse in some instances than not having a plan at all• Audit Plan – Verify compliance regularly• Revisit Standards, Regulations, Laws

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Summary

• Coordination & Collaboration• Plan First• Recognize Potential Consequences• Connect legal, privacy and regulatory retention

obligations directly to relevant information. • Work closely with each other…

– Counsel with Technology Groups– HIM with Counsel– C-Level with HIM– Inside Counsel with Outside Counsel and vice-versa

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In Practice…

• Context of a Matter/Event• Internal Policy• Demonstrated Compliance/Consistency• Data Maps• Preservation & Collection• Data Chain of Custody• Data Review by Counsel/Legal Team

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Thank You

Don't be caught trying to extinguish a fire when fire prevention was really the answer

David KearneyMS, PMP, CEDS

www.linkedin.com/in/davidjkearney/