Embed Size (px)
Citation preview
Litigation Holds in Healthcare Maintaining Patient Confidentiality and Complying With HIPAA's Privacy and Security Requirements
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
THURSDAY, FEBRUARY 19, 2015
Presenting a live 90-minute webinar with interactive Q&A
Paul S. Davidson, Partner, Waller Lansden Dortch & Davis, Nashville, Tenn.
Tera Rica Murdock, Waller Lansden Dortch & Davis, Nashville, Tenn.
Tips for Optimal Quality
Sound Quality
If you are listening via your computer speakers, please note that the quality
of your sound will vary depending on the speed and quality of your internet
connection.
If the sound quality is not satisfactory, you may listen via the phone: dial
1-866-927-5568 and enter your PIN when prompted. Otherwise, please
send us a chat or e-mail [email protected] immediately so we can
address the problem.
If you dialed in and have any difficulties during the call, press *0 for assistance.
Viewing Quality
To maximize your screen, press the F11 key on your keyboard. To exit full screen,
press the F11 key again.
FOR LIVE EVENT ONLY
Continuing Education Credits
For CLE purposes, please let us know how many people are listening at your
location by completing each of the following steps:
• In the chat box, type (1) your company name and (2) the number of
attendees at your location
• Click the SEND button beside the box
If you have purchased Strafford CLE processing services, you must confirm your
participation by completing and submitting an Official Record of Attendance (CLE
Form).
You may obtain your CLE form by going to the program page and selecting the
appropriate form in the PROGRAM MATERIALS box at the top right corner.
If you'd like to purchase CLE credit processing, it is available for a fee. For
additional information about CLE credit processing, go to our website or call us at
1-800-926-7926 ext. 35.
FOR LIVE EVENT ONLY
Program Materials
If you have not printed the conference materials for this program, please
complete the following steps:
• Click on the ^ symbol next to “Conference Materials” in the middle of the left-
hand column on your screen.
• Click on the tab labeled “Handouts” that appears, and there you will see a
PDF of the slides for today's program.
• Double click on the PDF and a separate page will open.
• Print the slides by clicking on the printer icon.
FOR LIVE EVENT ONLY
© 2015 Waller Lansden Dortch & Davis, LLP. All Rights Reserved.
Litigation Holds in Healthcare
Maintaining Patient Confidentiality and Complying with HIPAA’s Privacy and Security Requirements
Basics of a Litigation Hold
What is a litigation hold?
Where do I look for the requirements?
When do I implement a legal hold?
Why should I implement a legal hold?
Who should draft or implement the hold?
How are the rules different for my healthcare company?
7
What is a litigation hold?
The suspension of document destruction to ensure preservation of relevant documents
Usually an instruction to custodians of potentially relevant documents
8
Where do I look for the requirements?
Stems from the common-law duty to avoid
spoliation of relevant evidence for use at trial
Requires reasonable and good-faith actions to
preserve potentially relevant information related
to the threatened litigation
9
When do I implement a legal hold?
A party’s duty to preserve evidence begins when
the party is placed on notice that the evidence is
relevant to litigation or when the party should
know that the evidence may be relevant to future
litigation
– receipt of a subpoena, complaint, or demand letter;
– pre-litigation discussion with opposing party or counsel;
– inquiry from a state or federal government or regulatory
agency;
– receipt of a civil investigation demand;
– federal investigation or inquiry is contemplated.
10
Why should I implement a legal hold?
Consequences of implementing an untimely or
inadequate litigation hold are set out in Federal
Rule of Civil Procedure 37 (and state
equivalents), and include:
– Payment of attorney’s fees
– Adverse inference instruction;
– Striking pleadings in whole or in part;
– Dismissing the action or proceeding in whole or in part;
– Rendering a default judgment;
– Contempt of court.
11
Who should draft or implement the hold?
Coordination between outside counsel, inside
counsel, IT, and regulatory compliance.
Litigation hold may be outlined in an e-mail,
letter, or oral notice.
Some courts, including the U.S. District Court for
the Southern District of New York, have held that
‘‘the failure to issue a written litigation hold
constitutes gross negligence.”
12
How are the rules different for my healthcare company?
Preservation requirements are the same.
If preserving data by collection, make sure that
HIPAA Security Rule requirements are met.
When identifying documents to preserve, assess
whether documents other than electronic health
records contain personal health information, so
that the company can asses HIPAA Privacy Rule
compliance.
13
Sample Hold
14
Case Studies
Genova v. Banner Health
– Sanction of adverse inference instruction for failing to preserve “Code Purple Evaluation Worksheets”
15
Case Studies
Managed Care Solutions, Inc. v. Essent Healthcare, Inc.
– Bad faith required for spoliation sanctions
– But see Apple Inc. v. Samsung Electronics Co., Ltd.
16
Case Studies
U.S. v. Halifax Hospital Medical Center
– Hospital destroyed three years worth of medical records despite instituting a litigation hold
– Court called the conduct “reprehensible”
– Sanctions recommended; case settled thereafter
17
Case Studies
U.S. v. Community Health Systems, Inc.
– Healthcare company using compliance with litigation hold offensively
18
Best Practices
Consider standardizing implementation of litigation holds within your organization
When implementing a litigation hold, consider compliance with HIPAA Security Rule and Privacy Rule
Consider data management policies
19
