Spoliation of Evidence
Spoliation is the technical term used by lawyers and judges for the concealment and/or destruction of evidence. Prisons are a black box when it comes to the evidence within its walls. Unlike a normal public institution, prisons are extremely secretive. This secrecy allows a wide range of atrocities against inmates with no accountability for the prison or jail. In fact, the very purpose of the secrecy is to avoid accountability.
Federal and State Regulations for Medical Record-Keeping
There are strict medical record-keeping regulations for all medical providers with the exception of medical care provided within prison walls. The Health Insurance Portability and Accountability Act (HIPAA) and the Health Insurance Portability and Accountability Act (HITECH) are the two most important acts related to medical record-keeping. Both have very strict legally mandated guidelines on medical record-keeping. Likewise, there are strict financial and even criminal penalties for their breach.
HITECH in particular calls for electronic health records (EHR). EHR is critical for patient care for a number of reasons. In fact, without EHR, the “Portability and Accountability” in HIPAA is impossible. Paper records simply cannot be verified as accurate and complete. Paper records may easily be modified, altered, erased and/or destroyed. EHR protect against the alteration and destruction of medical records. Naturally, despite HIPAA and HITECH has chosen to stick with paper medical records. This takes us back to premise which is that NMCD wishes to avoid accountability which is in the very title of HIPAA.
HITECH Compliance Under NMCD Contracts with Medical Contractors
Remarkably, the contract between NMCD and its previous medical provider required compliance with HITECH compliant medical records meaning that the contractor was to implement an electronic medical record-keeping system. This was never done.
Collins & Collins, P.C. has filed numerous medical malpractice lawsuits over the last few years. In each lawsuit, the lack of electronic health records has been alleged in the lawsuits. In fact, lack of an electronic health records system is a major element of the many medical negligence counts against NMCD. In a case involving any other medical provider outside of a prison or jail, non-compliance with HITECH Act would be negligence per se meaning that the lack of compliance would be sufficient for a finding of negligence.
Consistent with NMCD’s complete lack of respect for medical health of inmates, NMCD’s decided to remove the HITECH compliance requirement completely from the contract with the new medical provider. Interestingly, the contract still calls for electronic health records but no EHR has been implemented. NMCD seems intent on sticking with paper medical records.
Why is this?
Lack of EHR Allows Destruction of Evidence
The answer is simple. Paper records can be manipulated, altered and destroyed at will. Integrity of the medical records is entirely reliant on the integrity of the providers entering the records and the medical records custodian. The medical records custodian is in fact NMCD itself. This cannot be overemphasized. NMCD is responsible for the storage and maintenance of NMCD inmate medical records. This is so even once it is clear that there are legal claims for medical negligence against NMCD and its medical contractors.
It is fairly well established that NMCD cannot be trusted. NMCD is prone to conceal, alter, falsify and destroy records as a rule. Despite being caught and sanctioned for spoliation, NMCD continues to engage in the behavior. Decisions are being made at the highest levels of NMCD that have determined that the risks of spoliation sanctions are worth taking. After all, NMCD does not get caught every time. Many times, they get away with it. And when they do get caught, the consequences are often trivial.
Spoliation of Medical Records Difficult with EHR
It is extremely difficult to alter, manipulate, conceal or destroy medical records with an effective EHR in place. EHR systems have many protective measures in place that provide for auditing of medical records. These audit functions make it relatively easy to determine if the medical records are complete and accurate. This means it is easy to determine whether records have been removed or altered. Not only that, but the audit tools will tell when, where and by whom the medical records were altered or deleted. An audit log will tell a reviewer of the medical records everything necessary to determine if the medical records for a patient are complete and accurate. NMCD clearly does not welcome this level of scrutiny. Use of paper records only which is almost too absurd to utter out loud with modern medicine, allows NMCD at its will to modify, alter, conceal and destroy inmate medical records. That is the whole point of sticking with paper medical records.
Motivation for NMCD Paper Medical Records Simple
It is no wonder that NMCD has determined to stick with paper records. NMCD has a penchant for altering and destroying evidence. EHR would prevent the destruction of medical evidence. NMCD will fight and/or ignore every measure including federally mandated medical record-keeping that would in any way result in full accountability for the medical atrocities that inmates suffer routinely in NMCD facilities.
It really is as simple as that.