DEFENSE CONSIDERATIONS IN CENTRALIZATION OF
MEDICAL INFORMATION MANAGEMENT FOR LITIGATION

By: Elizabeth B. Juliano, Carey J. Marousek, and James R. Fell

Introduction

A published report from a Fortune 500 company indicated that while 95% of their cases eventually settled, the discovery process alone consumed approximately 80% of total litigation expenditures. ¹ In mass medical product or toxic tort litigation a significant portion of such discovery can involve the evaluation of medical information and documents. With some companies reporting a need to respond to a recent 300-1000% increase in class action lawsuits, ² a cost-effective approach to medical information management is clearly an opportunity to control these expenditures.

The defense of mass tort typically involves the concerted efforts of corporate, insurance, and outside counsel. As many such torts proceed, the number of defendants often grows to include multiple corporations, each potentially with its own insurer and outside counsel. As a large number of parties become enmeshed in the overall defense process a complicated communications matrix evolves. The effective management of medical information is often at the center of the process.

Conventional Medical Discovery

Traditionally, each defense party named in a mass product liability or toxic tort has undertaken independent acquisition, review, and analysis of plaintiff medical records. This approach may be redundant and expensive in that a single set of records will be acquired multiple times, with numerous individuals evaluating identical documents. A great deal of time is invested by counsel and their assistants in gathering, sorting, and reviewing data, as opposed to focusing their legal expertise on the assessment of relevant information. In addition, varying interpretations of the same medical records may result due to differing methodological approaches.

The disadvantages of these overlapping functions are also realized as lost opportunities as a result of disseminated information, limited time available for strategic planning, and spiraling aggregate expenditures for all defendants. Such a decentralized approach to medical information management prohibits the creation of a common source of medicolegal knowledge from which to analyze the plaintiff population and engage in ultimate strategic planning for the legal defense.

Collaborative Solution

The solution to the aforementioned situation is to centralize the medical information management (MIM) initiative through the formation of a cooperative effort among the defense participants. All elements associated with medical information management for a given mass tort can thus be efficiently administered by one agency, which is mutually selected by the group. This partnering medical information management agent serves as the informational adhesive among the medical defense constituents.

Using a central source for coordination of medical record acquisition, review, analysis, and storage also serves to diminish overlapping activities performed by defense parties. Counsel is then freed to focus on its core competencies, as opposed to sorting and shuffling mountains of both relevant and irrelevant medical records. Furthermore, medicolegal specialists, typically nurse legal assistants, employed in the offices of defense counsel are released to directly focus their attention on interpreting the information provided by the central MIM source, assessing it against trial strategy, assisting in the discovery process, etc.

Centralization Advantages – The “6 C’s”

A centralized MIM effort results in efficiency, cost, time, and quality benefits derived from economies of scale and certain learning curve advantages. The six (6) “C’s” of these benefits include:

• Cost Sharing. The argument for centralization of MIM functions in mass torts is most compelling from the perspective of cost sharing. Case preparation expenses are minimized as one central agency acquires and stores a single copy of the pertinent medical records. This documentation can then be reviewed and analyzed by the central site’s medicolegal professionals, avoiding expensive duplication and shipping fees associated with transmission of thousands of pages of medical records among the various defense parties.

  The centralized MIM firm can coordinate the distribution of a single medical summary on each plaintiff to all cost sharing parties, further ensuring that all counsel are “reading from the same book.” The production of an objective and neutral summary of plaintiff medical records, without interpretation or recommendation of litigation strategies, allows all defendants to participate in the use of one uniform product.

• Consistency. A primary value in centralization of MIM is seen in the consistency of each medical review and analysis. The need for the attorney to adapt to varying products, approaches, and writing styles is eliminated. Counsel can quickly become familiar with the format of the medical summary document thus optimizing defense preparation time. For example, a standardized format allows counsel to rapidly digest a plaintiff’s medical history, even while aboard an airplane en route to a deposition or hearing.
  
  
• Communication. As litigation in a mass tort evolves, questions may arise regarding findings contained within the medical analysis. Centralization of MIM facilitates “one-stop” answers to these questions from a designated MIM case manager who can quickly and accurately research the information required.
  
  
• Coordination. The indications for centralization of the medical summary function are even more compelling in litigation which spans jurisdictions, because the caseload is rarely evenly distributed. In the typical situation, dockets reflect periods of intense activity, with occasional “all hands on deck” situations occurring in which hiring of temporary workers, with varying backgrounds and case orientation, may become necessary. During subsequent periodic lulls in the litigation, the law firm or corporation may be burdened with excessive worker capacity that poses a budgetary and administrative drain. In these cases, MIM centralization releases the law firm from supervision of human resources and medical review workflow, so that attorney attention can be directed toward higher level functions in the given litigation.
  
  
• Computers/Information Technology. Efficient MIM for mass tort litigation requires state-of-the-art information technology for rapid storage and retrieval of case data. While the defense of mass torts entails clear and effective communication among all parties, a frequently encountered barrier originates in the differing computer systems and software programs from one legal department to another. Centralization of MIM reduces or eliminates the impediments associated with varying computer packages as one central agency oversees the development, implementation, and maintenance of a database compatible with those systems of the attorney end-users.
  
  
• Continual Quality Assurance. A review of medical records which is free of date, diagnosis, interpretation, and other errors is critical in defending any case. In relying on a centralized agency for MIM, accountability and quality are guaranteed as a system of Continual Quality Assurance (CQA) checks and balances should already be part of the administrator’s workflow operation.
  
  

Functional Integration

Benefits of centralized MIM extend beyond the development of the medical record review and analysis. These outcomes are realized in functions of:

• Literature Reviews. In some mass tort litigation, an extensive review of the medical, epidemiological, and toxicological literature is required. It is economically and logistically impractical for each defense legal department to retain professional researchers to investigate, analyze, and abstract these publications. However, centralized MIM enables the costs associated with this aspect of case preparation to be distributed among all end-users. Specialists can conduct reviews on pertinent research as required by the litigation and disseminate common literature abstracts to all participating parties.
  
  
• Education and Development. Education of legal staff in the clinical aspects of the litigation is also expedited via centralized MIM. A medicolegal training specialist can create a universal medical reference manual for a given mass tort fostering a universal language among the defense firms. Moreover, the training specialist can assemble a common medical and scientific curriculum relevant to the given litigation, which can then be presented to designated personnel in each law firm.
  
  
• Expert Witness Identification. The identification of appropriate consulting and testifying physicians, scientists, epidemiologists, toxicologists, and other experts can be expedited through centralized MIM, avoiding the need for each individual law firm to research, locate, screen, correspond, and contract with these individuals. For example, an individual defense firm may have had limited prior experience identifying and selecting a suitable toxicologist with clinical expertise in the hazards of industrial solvent exposure. However, given the day-to-day nature of its work in the field, the central MIM agency will already have the resources in place to cost-effectively ascertain the best consultant for this particular litigation.
  
  
• Medical Defense Newsletter. Protracted mass tort litigation can sometimes justify the creation of a restricted-access medicolegal newsletter whose readership is limited to the defense group membership. Content of this newsletter is tightly focused on subject matter germane to the defense of the particular litigation, and can include items such as abstracts of recently published scientific and medical research, membership discussion regarding recent applicable court rulings, relevant book reviews, etc.
  
  
• Meetings. Medical defense strategy is enhanced by face-to-face communication among defense group membership. To expedite this exchange, the medical information management agency can coordinate and organize meetings at a common location, or alternatively structure office videoconferencing.
  
  

Summary

The ultimate decision to centralize medical information management for litigation must be founded on several factors. Ideally, the decision making process begins early in the litigation so that maximum structure can be imposed on medical review procedures and maximum cost advantages can be gained by avoiding duplicative efforts. Proactive consultation is advised with a MIM specialist experienced in coordination, project management, and review of voluminous medical records for multiple end-users.

Sager TL and Mayer DG. A New Era: The DuPont Legal System. EI du Pont de Nemours and Company, 1997; 6.
Donohue TJ. America’s Legal System: Out of Control? Innocent Companies are Hammered. Journal of Commerce. March 13, 1998; 7A.

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