Journal of AHIMA - May 2012

Trends in E-Discovery
Four Cases Provide a Glimpse of Healthcare Litigation’s Future

By Kim Baldwin-Stried Reich, MBA, RHIA, MJ, PBCI, CPHQ, FAHIMA

PAPER-BASED AND electronic record keeping systems each re- cord valuable information about a patient’s medical care. Elec- tronic systems, however, capture something more—they record information about the record itself. This “information about the information,” called metadata, has caught the attention of both the medical and legal profes- sions. Discovery on electronic records can overwhelm a case, as defense attorney Catherine J. Flynn attests in describing a liability lawsuit: investigation of the record “has taken a life of its own, and we’ve done virtually no discovery on the medical aspects of the case.” 1 For purposes of liability proceedings, metadata have been defined as “evidence, typically stored electronically, that describes the characteristics, origins, usage and validity of other electronic evidence.” 2

The electronic discovery marketplace is growing and evolving almost as rapidly as the healthcare information infrastructure. The e-discovery market is projected to reach $1.2 billion in sales by 2014.3 Meanwhile, experts expect that in 2012, “the e-discovery market will remain interesting and dynamic.” 4 Issues related to social media and management of information and e-discovery in the cloud will involve application of a new computerized technique called “predictive coding” for the identification and culling of potentially relevant information for litigation.

EHR adoption and the growth of health information exchange networks will give rise to a whole new array of healthcare tort claims. These may range from holding healthcare providers or insurance companies liable in negligence for economic losses and emotional distress damages arising from the loss or theft of patient information to wrongful death lawsuits resulting from the use of computer technology.

Although the type, nature, and jurisdiction of future healthcare litigation will vary, the four current cases highlighted below provide a glimpse into what tomorrow’s healthcare litigation will look like, with valuable lessons to learn from each case.

Predictive Coding

Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ.
1279 (ALC) (AJP) (S.D.N. Y. Feb. 24, 2012). An influential opin-
ion by Judge Andrew Peck of the Southern District of New York
on the use of a new computer-assisted technique called “pre-
dictive coding” in electronic discovery. Judge Peck endorsed the
use of computer-assisted predictive coding technology in dis-
covery, although he did not mandate its use in Da Silva Moore.
Rather, he specifically stated:
[Predictive coding] certainly works better than most of the alter-
natives, if not all of the alternatives. So the idea is not to make this
perfect, it’s not going to be perfect. The idea is to make it signifi-
cantly better than the alternative without nearly as much cost. 5

Impact/Lesson Learned: The use of predictive coding techniques in electronic discovery, including healthcare e-discovery, will continue to increase until the use of this tool is commonplace. Currently, there is no universally accepted definition of predictive coding in e-discovery; e-Discovery Journal defines it as a “process whereby a definition, made up of various rules, is created. Records in a collection are then evaluated to determine how well they match the definition.”