"I write. I teach. I get to do the things in the two areas I love — healthcare and the law. I'm able to help nurses who want to change their careers," reports Vickie L. Milazzo, RN, MSN, JD in her recent interview with NurseWeek. This biweekly publication provides nurses with the latest news, resources, and opportunities to help them succeed in their lives and careers. See the complete article "5 Minutes with...Vickie Milazzo, Legal Nurse Consultant" as published in the April 30, 2001 issue of NurseWeek.
BEST PRACTICES FOR TECHNOLOGY
Increasing the Scope and Breadth of Discovery in the Information Age
by Thomas M. Ziemba, BS, JD
As a legal nurse consultant, no matter which side of the case you work on, plaintiff or defense, you will eventually find yourself participating in the discovery process. Discovery used to be a simple process – "Give me all your paper that might help me prove my case." This traditionally included medical records, x-rays, policies and procedures, committee reports, incident reports, notes and other documents.
Today, with the increasing use of portable electronic devices both at home and at work, the savvy LNC will recommend that her attorney-client expand discovery to include these new media. For example, in a medical malpractice case you'll want to determine if the defendant doctors or nurses use any of the following devices, either at home or at work:
Laptop or desktop computer
Palm-type personal organizer
Email software/device
Computer network
Removable storage drive, such as floppy disks or "Zip®" drive
Dictation device or personal tape recorder
Telephone – mobile or wired
Any of these devices may be used to record or store information relevant to the case. Email that defendants send to friends, colleagues, listservs or family members is not protected by the attorney-client privilege or by the privilege associated with incident reports. Any information on a defendant's computer that is accessible by a family member or staff member not under the defendant's supervision is potentially discoverable.
Discovery in the Information Age may proceed in this fashion:
Find out what devices the defendant has used in his practice.
Determine who purchased the device, the facility or the defendant.
Determine whether the device was used solely for work or for other personal functions. Many a defendant-facility has been shocked to learn the full extent of communications a defendant made using his personal computer both during and after working hours.
Find out whether parties other than the defendant or people under his supervision (e.g., assistants) had access to the device.
Here are some additional guidelines for planning discovery involving specific electronic media:
Computer Systems – Determine what computer systems the defendant has access to at home and at work and determine whether back-up media exist covering the period in question. You would be surprised how many early drafts of potentially damaging reports and correspondence the defendant might have "forgotten" or "deleted." You may have to ask the facility for its back-up policies for corporate networks, including data and email, as well as asking for access to and print-outs from the back-up media for the period and for the defendants in question. You also must determine the schedule for destroying back-up media in order to preserve any evidence that may be scheduled for routine destruction.
Software Programs – Find out what software the defendant uses at work and at home. You may find notes taken at or related to the incident or other relevant discoverable documents the defendant created with word processing software, spreadsheets, electronic calendars, or day planning and scheduling software, such as found on Palm-type computers. For example, a personal information manager might show the defendant's presence, absence or scheduling conflict at the time of the incident made the basis of the lawsuit. You could discover that the MD hurried through the operation because she had an early tee time. Be sure to ask if software has been upgraded or changed since the incident so you can request the version in use at the relevant time.
Telephone – Look at telephone logs. Oftentimes discoverable phone conversations occur immediately following an incident and may indicate the beginning of a cover-up. Who did the person call after the incident – his wife, his attorney, another doctor or nurse? Many mobile or cell phone bills contain detailed data, including the telephone number called, date, time and duration of the call. Some facility phone systems log calls by the telephone extension. If you're aware of this feature, you'll be able to request phone logs for the specific extensions the defendant might have used.
Email – Request email messages the defendant sent to and received from other parties as well as from non-parties to the lawsuit. If you can show that the defendant may have seen email messages related to the incident sent by and to her family members, request these messages also. Find out what newsgroups, listservs and bulletin boards the defendant belongs to and obtain copies of any relevant postings or messages by or to the defendant.
A final warning – remind the defendants and facilities that destruction or spoilation of evidence may subject them to sanctions or liability. Mismanagement of email or data storage is different from willful destruction of those same files, but may have the same consequences – loss of potentially incriminating evidence. The faster you learn what devices the defendants use, the more you can do to protect potential evidence.
Whether you're drafting discovery questions or responding to them, your role as a LNC can be critical. To draft comprehensive questions, you must be thorough in determining all the media and devices the defendant may have used. To respond appropriately to discovery requests, you must broaden your search and how you think of discoverable information. Neither side wants to be in the position of leaving out an important potential source of information.
The Information Age has expanded the scope of discovery far beyond the contents of filing cabinets and document storage sites. We now have a whole new world of electronic media to explore and request. The modern legal nurse consultant will make herself indispensable to her attorney-client if she reminds him of all these different devices and media as he begins the discovery process.
Thomas M. Ziemba is the General Counsel for the Medical-Legal Consulting Institute, Inc.
