Explain the four elements of negligence that must be present in order for a plaintiff to recover damages?
Discuss the purposes for which the health record is maintained within a healthcare organization.
Explain the concept of e-discovery and discuss the role of health information management professionals in the e-discovery process.
What are the differences between a living will and a durable power of attorney for healthcare?
The corporate director of risk management is asked to review a patient’s health record in preparation for legal proceedings for a malpractice case. The lawsuit was brought by the patient 72 days after the procedure. Health information contains a summary of two procedures that were dictated 95 days after the procedure. The physician in question has a longstanding history of being non-compliant with the organization’s record completion policies, and previous concerns regarding this physician’s record maintenance practices had been reported to the organization’s credentialing committee.
Apply appropriate legal concepts to demonstrate why this health information may not be admissible in court.
What judgment, if any, regarding negligence could be made against the organization?
Sample Answer
Four Elements of Negligence
In order for a plaintiff (the injured party) to successfully recover damages in a negligence lawsuit, they must prove the presence of four distinct legal elements:
Duty of Care: The defendant (the party being sued) must have owed a legal duty to the plaintiff. In medical malpractice, this duty is established when a provider-patient relationship exists. The duty requires the healthcare professional to adhere to the established standard of care—that is, the level of care a reasonably prudent provider would have exercised under the same or similar circumstances.
Breach of Duty: The defendant must have failed to meet or deviated from that required standard of care. This is the act or omission (failure to act) that violates the duty. For example, a surgeon operating on the wrong site or a nurse failing to monitor a critical patient as protocol requires.
Causation (or Proximate Cause): The plaintiff must prove that the defendant's breach of duty was the direct and proximate cause of the plaintiff's injury. There must be a direct, foreseeable link between the negligent act and the resulting harm.
Damages (or Injury): The plaintiff must have suffered a legally recognizable injury or loss (e.g., physical harm, pain and suffering, financial loss) as a result of the defendant's breach. Without actual damages, a negligence claim cannot proceed.
Purposes of Maintaining the Health Record
The health record is maintained within a healthcare organization for multiple, interconnected purposes:
| Purpose | Description |
| Primary (Clinical Care) | Patient Care Continuity: Documents the patient's condition, diagnosis, treatment, and response, ensuring all providers have complete information for current and future care decisions. |
| Secondary (Administrative & Legal) | Legal Record: Serves as the official, legal documentation of the care provided, critical for defending malpractice claims, insurance audits, and complying with subpoenas. |
| Financial/Billing | Reimbursement: Provides the necessary documentation to justify services rendered, ensuring accurate coding (ICD and CPT) and timely payment from insurers (Medicare, Medicaid, and private payers). |
| Quality Improvement | Data Analysis: Used for internal quality assurance, monitoring outcomes, utilization review, credentialing, and performance improvement initiatives to enhance safety and efficiency. |
| Research & Education | Provides de-identified data for clinical research, public health tracking, and educating future healthcare professionals. |
Export to Sheets
E-Discovery and the HIM Professional's Role
E-discovery (Electronic Discovery) is the process of identifying, preserving, collecting, reviewing, and producing electronically stored information (ESI) in response to a request for production in a lawsuit or investigation. In healthcare, ESI includes the Electronic Health Record (EHR), emails, diagnostic images (PACS), metadata, and audit logs.
Role of Health Information Management (HIM) Professionals
HIM professionals are essential to the e-discovery process due to their expertise in the legal, regulatory, and technical aspects of health information:
Legal Hold Implementation: Upon notification of litigation, the HIM professional works with legal counsel to implement a legal hold (or litigation hold) to immediately prevent the deletion or alteration of relevant ESI, including all associated metadata.
Identification and Collection: They identify the specific systems (EHR, billing, RIS, PACS) and locations where the responsive information resides. They are often responsible for the secure and verifiable collection of the ESI.
Data Authentication and Integrity: HIM professionals ensure that the ESI is produced in a manner that preserves its integrity (e.g., via certified copies or audit logs) so that it is admissible in court. They may be called upon to testify about the EHR system's standard practices and data security.
Applying Privilege/Relevance Filters: They assist legal counsel in applying filters to ensure only relevant, non-privileged patient information is released, complying with HIPAA and state privacy laws.
Living Will vs. Durable Power of Attorney for Healthcare
Both are types of advance directives, legal documents that allow individuals to specify their healthcare wishes in the event they become incapacitated, but they differ in what they specify and who executes the decision: