With the nationwide move to using electronic medical records in lieu of paper charts, the duty to preserve evidence has become a more complicated process for medical providers. The duty to preserve evidence arises when a party has notice that the evidence is relevant to litigation, or when a party should have known the evidence may be relevant to future litigation. Routine document retention policies must be suspended and a “litigation hold” is required to ensure that documents are preserved. The destruction or failure to preserve evidence can lead to claims of spoliation of evidence with potential sanctions including a negative inference that the evidence would have been harmful to the medical provider. Sanctions for spoliation are not limited to willful destruction of evidence and can be sought when mere negligence led to the failure to preserve evidence. It is essential to understand how electronic data is created, maintained, and stored in order to effectively plan for managing the electronic data in litigation to avoid these legal risks.

Here are ten tips to avoid claims of spoliation of electronic data for medical providers gleaned from the cases decided to date:

1. Plan ahead and proactively address situations that may lead to litigation.

2. Know what is legally required for data retention including information contained in email, electronic messages, and audit trails.

3. Consider the most effective way to provide written notice to all parties with access to the electronic medical record of the need to preserve evidence and retain the notification.

4. Identify the appropriate members of your team to manage the preservation of electronic data, such as the HIPAA privacy officer, a member of the legal department, an IT representative and a medical records representative.

5. Identify the various locations of electronic data outside of the main server, such as home computers and personal devices of providers with remote access to the electronic medical record.

6. Choose the format for your official electronic medical record, make sure it is complete, and avoid multiple productions when possible.

7. Create clear and simple policies placing a “litigation hold” when litigation is anticipated well in advance of any legal action.

8. Train all of your employees about the importance of preserving the electronic medical record.

9. Educate all of your employees about the existence of the audit trail, including, without limitation, metadata, that will illustrate each user’s access to the electronic medical record.

10. Implement policy consistently and conduct periodic retraining and auditing to ensure that the system you have designed to manage your electronic data is working.

Implementing effective policies to manage and control the creation, maintenance, and storage of the electronic medical record, along with adequate training of employees regarding the obligations of the provider to preserve information that is subject to discovery in litigation, is not only essential in avoiding a spoliation claim, but may also be critical to the provider’s own claims or defenses.