23 Health Law. 1 (2010-2011)

handle is hein.journals/healaw23 and id is 1 raw text is: THE ABA HALTH, LAW SECTION
F-=mLAWYER

Electronic Discovery and
Healthcare Litigation: Government
Influence on Conversion to
Electronic Health Records, and
How It Has and Will Continue to
Impact the Discovery Process.... 1
Tobacco Regulation in
the United States: New
Opportunities and
Challenges .......................... 13
The Usefulness of Non-Linear
Thinking: Conceptual Analysis
Tools and An Opportunity
to Develop Electronic Health
Information Privacy Law ........ 18
Discharging False Claims
Liability in Bankruptcy,
Section 1141(d)(6)(A)
of the Bankruptcy Code:
An Incentive to Settle
FCA Cases? ........................ 40
Health Plans 2011:
Healthcare Reform Begins....... 47

AMERICAN BAR ASSOCIATION
Health Law Section

Volume 23, Number 1
October 2010

ELECTRONIC DISCOVERY AND HEALTHCARE
LITIGATION: GOVERNMENT INFLUENCE ON
CONVERSION TO ELECTRONIC HEALTH
RECORDS, AND HOW IT HAS AND WILL
CONTINUE TO IMPACT THE DISCOVERY PROCESS

Anna M. Bryan, Esq.
Debra A. Weinrich, Esq.
Edward F. Beitz, Esq.
White and Williams LLP
Philadelphia, PA
Introduction
For attorneys and many other pro-
fessionals working in the electronic
age, computers and PDAs are the dom-
inant means of creating, exchanging
and storing information. Computer-
based information technology has
become commonplace, and it is increas-
ingly rare to see pen put to paper in the
workplace. In fact, a study conducted
at the University of California at Berk-
ley back in 2003 found that, even then,
only 0.01 percent of newly created
information was stored in paper format,
with the remainder being stored in
electronic formats.' A more recent
study, performed in 2009, found that
digitally-stored data now totals 487 bil-
lion gigabytes world wide - the
equivalent of 19 billion fully-loaded
Blu-ray DVDs.' The study estimated that
these existing gigabytes of digital content
would double in a mere 18 months, and
every 18 months thereafter.3

Just as it has changed the practice
of law in so many respects, the digital
revolution has had a significant
impact on the practice of medicine.
Yet, for all the advances computer
science has contributed to medical
science, the healthcare industry
remains relatively behind the digital
curve when it comes to creating,
exchanging and storing patient health
information. According to a survey
performed by the National Center for
Health Statistics in 2008 and 2009,
more than 50 percent of physicians
were not utilizing any form of elec-
tronic health records.' Only 6 percent
of physicians were using a fully func-
tional electronic health record
system.' Over the next five years, this
undoubtedly will change.
In addition to implementing new
HIPAA rules governing security and
privacy, the Health Information Tech-
nology for Economic and Clinical
Health Act (HITECH Act) of 2009
(part of the larger Stimulus Act) was
intended to hasten the nationwide
development of electronic health
record (EHR) technology. Through
the HITECH Act, the government has
allocated significant spending in the
form of incentives and funding for
continued on page 3

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