With the emergence of email and text technology, large amounts of ESI – Electronically Stored Information – are available to discover in litigation.  The Courts are trying to keep up by creating reasonable and workable rules to preserve, request, and share ESI in litigation. There are many cases that provide guidance on what is reasonable to do and expect. The big question is determining what sources of ESI should be preserved and for how long without being penalized for “destroying” the evidence.

The Federal Rules of Evidence have addressed spoliation in the ESI context via Rule 37(e), which was amended in 2015. The amended rule essentially breaks ESI spoliation down into two categories: (1) Negligent; and (2) Intentional.

For the first category, if a party fails to take reasonable steps to preserve ESI and the lack of that evidence is harmful to the requesting party, then the court can take measures it deems appropriate to cure the harm.  See, for example, ILWU-PMA Welfare Plan Bd. of Trustees v. Connecticut General Life. Ins. Co., No. C 15-02965, 2017 U.S. Dist. LEXIS 10529 (N.D. Cal. Jan. 24, 2017). In that case, the defendant company was owned by a parent company who sold off one of its other entities. That entity possessed computer servers but deleted important information despite an agreement in the contract for sale prohibiting destruction of information on the servers.  The court  determined that defendant should have done more to retain its ESI before the sale, and imposed monetary sanctions.

On the other hand, if the court finds the loss of ESI is intentional, the court can take sanction the party. Sanctions can include instructing the jury to assume the “destroyed” information was unfavorable to the party who “destroyed” it; or the court can dismiss the case or grant a default judgment in favor of the requesting party.

In O’Berry v. Turner, No. 7:15-CV-00064-HL, 2016 U.S. Dist. LEXIS 55714 (M.D. Ga. Apr. 27, 2016), the plaintiff sent the defendant trucking company a preservation letter. The trucking company printed out one paper set of the electronic driver logs from its vendor. Later, it was discovered that the paper copy had been lost in an office move and the electronic records were no longer available from the vendor. The court in that case found that the trucking company’s practice of simply printing one paper set of the records was not a reasonable enough step to preserve the information. So, while the trucking company did not “intentionally” destroy the records, they did “intentionally” fail to put a better system in place for preserving the records, which was enough for the court to impose a serious sanction.  Parties must do more than the bare minimum of printing out one paper set of electronic driver logs.

In Barry v. Big M Transportation, Inc., No. 1:16-CV-00167-JED, 2017 U.S. Dist. LEXIS 146691 (N.D. Ala. Sept. 11, 2017), one of Big M’s trucks was involved in a collision with the Barrys. Following the collision, the truck was towed from the scene and within the next 48 hours was driven from the tow yard back to Big M. The law enforcement officers who wrote the accident report indicated the collision was caused by the Barrys’ improper parking. Big M received a letter from the Barrys’ attorney requesting that Big M preserve the black box data from the truck. However, the truck had undergone repairs from the collision and was sold, and the information was no longer available.

The Barrys argued that Big M should be sanctioned for failing to preserve the ESI before or after their preservation letter. That Big M should have known that litigation was likely to ensue and it should have taken steps to preserve the evidence. The court found Big M guilty of spoliation. The court believed that Big M should have reasonably foreseen that litigation would ensue from such a serious collision. Further, the court believed Big M should have at least attempted to comply with the preservation letter before releasing the truck to the buyer.

However, the court did not impose the severe sanctions reserved for those who intentionally deprive their opponent of ESI. The court acknowledged that even though Big M’s actions were technically intentional, the court decided that as a sanction it would allow the Barrys to point out that Big M failed to preserve the ESI and that the parties could then make arguments to the jury as to why the evidence was not maintained and what inferences should be drawn from that.

From Public Justice website:

Public Justice just won a critically important victory against court secrecy. The decision in Animal Legal Defense Fund v. Hormel Foods Corporation makes a crucial point: When documents are filed in court, a company can’t keep them secret just because it marked them “confidential.” The company must prove that sealing them is justified. And the legal standard it has to meet is raised to protect the public’s right to know. Instead of showing that there is “good cause” for secrecy, the standard that applies when the parties privately conduct discovery, the company must prove “that interests favoring secrecy outweigh the general and specific interests favoring disclosure.”

ALDF v. Hormel, filed in the District of Columbia Superior Court, charges that Hormel’s “Make the Natural Choice” advertising campaign for its Natural Choice line of turkey, chicken, beef, ham, and bacon products misleads and cheats the public by claiming the products are 100% natural, with zero preservatives and no added nitrates or nitrites, when none of that is true. It asserts that Hormel’s Natural Choice products contain the same factory-farmed meats as its other product lines. It says the animals are raised in entirely unnatural settings; given hormones, antibiotics, and growth enhancers; tortured during slaughter; and generate meat contaminated with fecal matter, hair, nails, and other items.

In the course of litigating the case, Public Justice filed several of the documents produced by Hormel in discovery for consideration by the court. Public Justice wanted the documents made public. Hormel asked the court to permanently seal them. It argued that, “by signing the parties’ proposed protective order [which allowed either party to mark documents confidential] the court found good cause to seal documents designated as confidential by the parties.”

The court disagreed. It said:

First, the court’s decision to sign the protective order proposed by the parties did not imply a finding of good cause to seal every document designated as confidential by the parties. To the contrary, the court simply put in place an agreed-upon system to govern the parties’ handling of documents produced in discovery and identified as confidential by one side or the other. Nothing in the protective order delegated to the parties the court’s obligation to make sealing decisions in accordance with controlling legal standards.

“Second,” the court made clear, “good cause is not the standard by which sealing requests are addressed.” In Mokhiber v. Davis, the D.C Court of Appeals held thirty years ago that, “[i]f discovery material submitted as evidence in connection with court pleadings is to be protected from public view, the party desiring secrecy must rebut the presumptive right of public access.” That decision, the court found, required Hormel to “rebut the presumption by demonstrating that interests favoring secrecy outweigh the general and specific interests favoring disclosure.” It found Hormel had not “made the requisite showing as to any of the documents at issue” and ordered the documents “unsealed and made a part of the public record.”

The court’s decision continues Public Justice’s string of victories overcoming unjustified court secrecy and vindicating the public’s right to know. This includes successful battles to expose the truth about sexual harassment in the trucking industry, defective Goodyear tires killing and injuring people, DirecTV’s efforts to cheat low-wage workers, payday lenders bilking 4.5 million people out of $2 billion, potentially dangerous power systems in millions of Chryslers, and 7.5 million Remington rifles with a defective trigger that can fire when no one pulls it.

Unjustified secrecy injures and kills. We have to stop it. The decision in ALDF v. Hormel is the latest step in that effort.

A New York Court struck the Answer of a nursing home for failure to respond to discovery including providing a complete copy of the resident’s nursing home chart. See Order in Schiller v. Sunharbor.

“In 2011, Georgette Schiller, as executrix of the estate of Bernice A. Schiller, deceased, and individually, commenced this action against, among others, Sunharbor Acquisition I, LLC, doing business as Sunharbor Manor, OG Operator, LLC, as successor to Sunharbor Manor, and Sunharbor Manor, LLC, doing business as Sunharbor Manor (hereinafter collectively the defendants). The plaintiff alleged that the decedent received care and treatment at the defendants’ nursing home, and that the defendants’ negligence caused an infection in the decedent’s left leg, which ultimately required amputation of her leg above the knee and resulted in her death. Almost four years after she commenced the action, the plaintiff moved, inter alia, pursuant to CPLR 3126 to strike the defendants’ answer on the ground that the defendants were willful and contumacious in their failure to respond to the plaintiff’s repeated demands for the decedent’s entire medical record and the Supreme Court’s orders related to the same. The court granted that branch of the plaintiff’s motion which was to strike the defendants’ answer, and the defendants appeal.”

“Here, the defendants’ repeated failures, over a period of years, to respond to the plaintiff’s discovery demands, even after being directed to do so by multiple court orders, without adequate excuses, constitutes willful and contumacious conduct.”

By law, every nursing homes using computerized medical records must have a system that can generate a log or audit trail showing not only every electronic entry, but every access of the electronic record.  The audit trail prevents the alteration of the records without leaving a telltale trail behind.

The Health Insurance Portability and Accountability Act (HIPAA) of 1996 required the establishment of national standards for
electronic health care transactions. Health care providers were to implement security measures to ensure that electronically
transmitted and electronically protected health information “is not improperly modified without detection until disposed of.”
HIPAA also mandated that health care facilities retain the required documentation (including audit trail data) “for six years from the date of its creation.”

More recently, the Health Information Technology for Economic and Clinical Health Act (HITECH Act) was designed to “build
trust in health information exchange. HITECH, in addition to protecting medical information and personal data, also provides for an increased transparency to patients, who now are supposed to be granted access to their own electronic records within 30 days of the request.

Additionally, patients should be permitted access through a portal, so they can see the records in the same format that the healthcare providers see when they are making or accessing the patients’ records.

Why is this important?  Here is an example why.

Diana L. Stephens, a nurse at Golden Hill Nursing Home, is facing charges for allegedly stealing oxycodone and codeine while employed.  She had worked at the home from September 2015 through January, according to an affidavit.

Stephens is accused of diverting the painkillers by signing out the drugs on the controlled substance log, but the amount showed discrepancies on the patients’ electronic medication administration record, according to the affidavit that the agent filed in court.  The discrepancies showed that the patients were getting a lot fewer of the dosages units than Stephens had signed out.

NPR and Propublica both had articles about Dr. Lars Aanning who has admitted to lying underoath for a colleague.  This happens all the time.  Doctors don’t squeal on doctors.  It is similar to the thin blue line for police officers.  Should Dr. Aanning be commended for telling the truth now?

The South Dakota surgeon had been called to vouch for the expertise of his partner whose patient had suffered a stroke and permanent disability after an operation.  Dr. Aanning faced an ethical and legal dilemma.  Aanning had, in his own mind, questioned his colleague’s skill. His partner’s patients had suffered injuries related to his procedures.

The attorney asked the key question: Did Aanning know of any time his partner’s work had been substandard?

“No, never,” Aanning said.

Now, Aanning, in a stunning admission for a medical professional, has a blunter answer: “I lied.”

His partner won the trial

Aanning is haunted by his decision.

Now, 77 and retired, he decided to write about his choice and why he made it in a recent column for his local newspaper, The Yankton County Observer. He also posted the article in the ProPublica Patient Safety Facebook group.

From that very moment I knew I had lied — lied under oath — and violated all my pledges of professionalism that came with the Doctor of Medicine degree and membership in the [American Medical Association],” Aanning wrote.

ProPublica has found that patients frequently aren’t told the truth when they are harmed. Studies also show that many physicians do not have a favorable view of informing patients about mistakes and that health care workers are afraid to speak up if things don’t seem right. Many doctors and nurses have told ProPublica that they fear retaliation if they speak out about patient safety problems.

Why did you tell the lie?

I did it as a matter of course. And I did it because there was a cultural attitude I was immersed in: You viewed all attorneys as a threat, and anything that you did was OK to thwart their efforts to sue your colleagues. I just accepted that as normal. It wasn’t like, “I’m going to lie.” It was, “I’m going to support my colleague.”

Did you feel pressure from your peers to never criticize a colleague?

Pressure is the prevailing attitude of the medical profession. The professional societies like the AMA and the American College of Surgeons say you should be a patient advocate at all times. But that goes out the window because here you are, banding together with your peers. Because if you don’t, you’ll be like a man without a country.

Why are you telling the truth now?

I’m retired now. The big benefit is they can’t hurt me, but I can’t go to the clinic for any help. All my doctors are out of town. I came to America from Norway in ’47 and grew up in New York. I’ve always been a rabble-rouser. This testifying falsely at this trial was not like me, so it stands out. It’s not how I do stuff.

I also told the truth about my lie because I have been helping some of these plaintiffs’ lawyers with their cases. It seems that the courtroom is not the arena for adjudication of medical right or wrong. I shared my story to give an explicit example of why you can’t always rely on physician testimony in court. I think that’s the big reason. There’s got to be a different way to help people who have been medically harmed. Looking to the legal system is like mixing oil and water.

Do you feel like it’s your fault the patient lost the case?

I haven’t touched on that question. It would make it painful for me. I would be moved to tears if that whole case revolved around just my testimony. I was on the stand so briefly. But cumulatively between what I said and the other testimony — it was never a level playing field for the plaintiff. People don’t recognize it. How the judges don’t recognize it and the system doesn’t recognize it is beyond me. It’s something I’m coming to grips with.

Have you thought about talking to the patient’s family?

The attorney said something about meeting the patient’s widow in his office, or something like that. I worry about whether my testimony weighed on the final verdict or not. It’s something that you just have to face up to. It’s too late to deflect it.

Do you feel any better or worse now that you’ve gone public with your moral failure?

I’m not altruistic. I’m not a crusader. I got into writing this column accidentally, so I just kind of find myself in this position. I get a great satisfaction out of defining what I see and writing about it. I hope nobody’s going to come back at me and accuse me of bad conduct. Although that’s what it was. I felt bad about it.

North Carolina Lawyers Weekly had an article on a recent Sanctions Order issued by a South Carolina trial judge against a North Carolina lawyer and his client for engaging in abusive discovery tactics during a wrongful death case.  Discovery abuse including obstruction and delay are rampant in nursing home litigation.  The Court found order that a senior living and healthcare facility operator, Five Star Quality Care Trust Inc., and its Charlotte-based attorney, Gerald Stein II of Hedrick Gardner, turned the discovery process into a game of Go Fish.  She wrote that “defense counsel makes opposing counsel ‘go fish’ until they happen to stumble upon crucial witnesses and critical documents.” She specifically found that Stein and Five Star failed to produce appropriate witnesses, ran afoul of the rules of alternative dispute resolution and withheld a key document.

This court recognizes it bears responsibility for protecting our civil justice system from abuse,” she added, “yet it finds no pleasure in admonishing fellow attorneys.”“Issuing an order of sanctions is a somber task for circuit judges,” Richland County Circuit Judge Tanya Gee wrote in a Jan. 27 order denying reconsideration of her sanctions award.

Gee ordered Stein and Five Star to pay $34,955 to the plaintiff’s attorneys. They represent Patricia Greenburg in a wrongful death suit against Five Star, which operates the The Haven in the Summit senior facility in Columbia, where Greenburg’s mother, Constance Chandler, fell several times causing her death in 2010.

It strains credulity to believe that the Five Star defendants were surprised to learn that the plaintiff sought information pertaining to the timeframe identified in the complaint as the time during which Ms. Chandler had numerous falls and died,” she wrote in her order.

She also scolded Five Star and Stein for failing to hand over during discovery a mock survey that included information that was responsive to at least six of the production requests from Rikard’s firm.  The survey came to light during a deposition. She testified that the survey was prepared the same month that Chandler died and described the document as a “good audit tool of how the community is doing.” The survey included details about the facility’s policies and procedures, staff training, incident reports and fall prevention programs.

Stein argued at the sanctions hearing that he first learned about the survey at the deposition. But before the hearing, he had argued in a memo opposing the motion for sanctions that the survey was not responsive to the discovery requests.

While honest mistakes happen during document production,” Gee wrote, “defense counsel’s written assertion that he had no obligation to produce the mock survey suggests counsel purposely withheld the document, not – as defense counsel later argued – that the document had never been revealed until the deposition.”

It’s rare in South Carolina to have this kind of sanctions order from a state court. But it is necessary and much needed,” he said. “I hope this is an order that will signal what will happen in the future when people play games with the discovery rules.”

 

Quality Assurance and Performance Improvement Program reports are not privileged or protected from discovery according to a West Virginia court.  The court said HCR ManorCare LLC must provide nurse consultant reports, also called Center Visit Summaries, as part of a wrongful death lawsuit brought by a resident’s family member against Heartland of Charleston. ManorCare claimed the reports were meant solely for the company’s Quality Assurance and Performance Improvement Program, and were excluded from discovery.  Plaintiffs’ attorneys wanted the consultant reports to argue against a defense claim that it didn’t operate or manage any nursing homes.

 

Westfair Online reported a nursing home will pay $2.2 million to the state and federal governments to settle claims of Medicaid fraud.  Ralex Services Inc., which operates the Glen Island Center for Nursing and Rehabilitation on Pelham Road in New Rochelle, and its owner, Leah Friedman, will return the $2.2 million garnered from allegedly submitting more than 62,000 false claims to the joint state and federal program between 2002 and 2006.

“Safeguarding public health care dollars is of critical concern, and my office will investigate — and prosecute — all allegations of impropriety by health care providers who obtain Medicaid funds to which they have no right,” state Attorney General Eric T. Schneiderman said in a press release announcing the settlement. “We must care for our most vulnerable New Yorkers and at the same time protect our taxpayer dollars. Today we are saying: There is one set of rules for all nursing home providers — and my office is here to make sure those rules are followed.”

According to allegations made by the state and federal governments, the nursing home’s claims used Medicaid reimbursement rates based, in part, on up-coded Patient Review Instruments, which falsely represented the degree of care required by many Glen Island residents during the mandatory quarterly assessment periods covered by these submissions. The defendants exaggerated residents’ diagnoses, conditions and required treatments in the reports, according to the press release, and routinely stated that residents were receiving treatments, including for oxygen and suctioning, when such treatments were neither required nor given.

According to the Attorney General’s press release, the defendants attempted to cover up their fraudulent submissions and false claims by making false entries and forgeries into Glen Island residents’ medical records. These falsified records were later turned over to the attorney general’s Medicaid Fraud Control Unit. Two former Glen Island nurses, who participated in “tampering parties” at which records were falsified, were also convicted by the attorney general’s office.

 

Steven Littlehale is a gerontological clinical nurse specialist, and EVP and chief clinical officer at PointRight Inc.  He wrote the below article for McKnight’s.

You’ve heard the adage: “If it wasn’t documented it wasn’t done”, but does anyone actually think that’s realistic or meaningful?  Yet sadly, millions of dollars have been paid by nursing homes who unsuccessfully defended themselves against incomplete or absent documentation. There are not as many legal guidelines regarding medical records maintenance as you might think; however, there are essential legal aspects of charting to keep in mind. Poor legibility, lack of dating, timing, and signing entries, improper labeling, spelling/grammar errors, inconsistent data entries, use of unauthorized abbreviations, mistaken/erroneous entries, and delays and gaps in charting, are the most common findings under scrutiny during a records review process.

During the initial phases of discovery, the medical record is regarded as a repository of information. The contents and quality of the record speak volumes about the standard of care and any potential deviation. Therefore maintaining, organizing and storing medical records should be regarded with a high level of importance.

Most nursing homes have policies and procedures for responding to requests for medical records by an outside party such as a plaintiff attorney or family member. If your facility does not, immediately consult with counsel and establish one. This is not a corner to cut.

Does your policy instruct that MDS assessments should be included? Typically these assessments are not included as part of record requests. However, the MDS could provide details of a resident’s care over time; changes in medical condition, physical and cognitive functioning, medications, diagnoses and treatments. The MDS describes what the resident is at risk for and what you’re doing to prevent a negative outcome or worsening of a condition. The MDS can significantly influence the interpretation of care.

Set yourself up for success! These five tips will improve any record you produce.

•Instill within your organization awareness of the importance of handling, organizing, maintaining, and storing the medical records.

•Systematically and consistently conduct chart audits to determine potential problems and erratic trends in charting.

•Invest in an MDS data accuracy program to ensure that incongruent MDS data entries are identified early on before final submissions to CMS or third party providers.

•Incorporate analysis of the MDS assessment forms during the initial phases of the records review process; use the MDS assessment to guide the review focus.

Know that the medical record is always pulled for review, regardless of the type of claim or allegation. By establishing good policies, providers can save themselves many headaches.

 

National Health Investors, Inc. (NYSE:NHI) announced it has completed the sale of 3 skilled nursing facilities in Texas to Fundamental Long Term Care Holdings, LLC ("Fundamental") for $18,491,000.  Fundamental owns and operates over a 130 long term care facilities in more than 17 states.  Fundamental is owned and controlled by Murray Forman and Leonard Grunstein.

The facilities, totaling 484 beds, have an average age of 41 years. Cash rent to NHI for 2013 for the 3 facilities sold was approximately $2,138,000, after allocations under the amended master lease. NHI continues to lease 4 skilled nursing facilities to Fundamental.