President Obama has made the adoption of electronic medical records (commonly known as "EMRs") one of the central themes of his Administration's ongoing effort to modernize health care in the United States. In fact, although only approximately 8% of the country's 5,000 hospitals and 17% of its 800,0001 physicians currently use EMRs, President Obama has set a firm goal that all of the nation's medical records be computerized by 2014. Recent legislation has been aimed at furthering this goal, for example the recently passed American Recovery and Reinvestment Act which, inter alia, will provide federal subsidies of up to $44,000 for physicians who demonstrate meaningful use of EMRs by 2011.2

While it is clear that EMRs are the wave of the future, what is less clear is how their universal adoption will impact other fields that are dependent on the health care industry. Medical malpractice ligation is one area that will undoubtedly experience profound change as a result of EMR adoption, and what the nature of that change will be has already begun to spark serious debate among those who will be most affected by it, including both legal and medical professionals.

One of the highly touted benefits of EMRs is the potential to prevent incidents of malpractice by, among other things, providing better documentation, automatically checking for medication errors and/or drug interactions, and providing failsafe systems to track test results and patient follow-up. Results of a recent Harvard study indicate that only 6.1% of physicians who have already transitioned to electronic medical records had malpractice settlements compared to 10.8% of those who have yet to start using EMRs.3 The researchers behind the study believe that electronic records decrease malpractice claims primarily because they offer physicians easy access to a patient's history, which leads to fewer errors, and clear documentation of care in the event of a legal battle. Bolstering this position is recent evidence that hospitals on the forefront of EMR adoption have experienced a drop in neonatal mortality4, evidence that is especially compelling when considering that obstetrics is a field where malpractice litigation has historically been quite prevalent.

However in spite of this ostensibly convincing data, there are those that believe EMRs will actually increase malpractice litigation in ways that have not yet been fully realized, namely because they have the potential to provide significantly more detailed information about patient care than a traditional paper record, thus increasing the chance that a plaintiff's attorney will find evidence of wrongdoing on the part of a physician or hospital. While the limited number of hospitals and physicians currently employing EMRs means that the number of illustrative cases is limited, one recent case does breathe some life into this theory. In that case, a patient was left quadriplegic following routine surgery, and the suit initially focused strictly on the surgeon's negligence. However, after conducing pre-trial discovery, which released the patient's EMR's to the plaintiff's attorney, records were discovered that contained an electronic date stamp casting doubt on whether the anesthesiologist was present for the entire procedure5. This discovery not only resulted in the naming of an additional defendant, but also changed the entire theory of the case.

Moreover, in addition to an increase in the overall prevalence of malpractice cases, some believe the transition to EMRs will likely engender a host of related, underlying legal issues associated with things such as data loss and destruction, inappropriate corrections to medical records (which were previously untraceable), inaccurate data entry, and unauthorized access to records, to name a few.

One of the most pervasive issues surrounding the adoption of EMRs, and one which is commonly addressed by both sides of the debate, involves what impact it will have on the standard of care in medical malpractice cases. For example, in the future will the failure to adopt EMRs in and of itself constitute a deviation from the standard of care? Will physicians have a legal duty to access patients' past medical records? Might the standard of care even be shaped by a software vendor's choice of clinical-decision-making-tools? Which also begs the question, will expert testimony in the fields of health informatics and health technology start to become necessary, or might software vendors and manufacturers routinely become co-defendants and/or witnesses in medical negligence lawsuits? These questions only scratch the surface of how EMRs may change the face of medical malpractice litigation as we know it.

While the exact impact EMR adoption will have on medical malpractice litigation remains to be seen, what is certain is that change is coming. In anticipation of this change, prudent medical malpractice attorneys should equip themselves accordingly by becoming familiar with the systems and processes that are used to create, transmit, and store health information electronically. Moreover, malpractice practitioners should also acquaint themselves with what is entailed in requesting and producing electronic documents in the era of electronic medical records.

1 David Goldman, Obama's Big Idea: Digital Health Records, CNNMoney.com, January 12, 2009, http://money.cnn.com/2009/01/12/technology/stimulus_health_care/index.htm.
2 Steven I. Kern, Hidden Malpractice Dangers in EMRs, Medscape, April 9, 2009, http://www.medscape.com/viewarticle/589724.
3 Study published in Archives of Internal Medicine, November 24, 2008, Vol. 168, No. 2.
4 Amalia R, Miller and Katherine E. Tucker, Can Healthcare IT Save Babies?, July 1, 2009, http://ssrn.com/abstract=1080262.
5 Amalia R. Miller and Catherine E. Tucker, Electronic Discovery and Electronic Medical Records: Does the Threat of Litigation affect Firm Decisions to Adopt Technology? April 27, 2009, http://ssrn.com/abstract=1421244.

On May 18, 2009 in a 4-3 decision, the California Supreme Court ruled in In re Tobacco II Cases, 46 Cal.4th 298 (2009), marking a victory for consumers by reinterpreting Proposition 64 to increase flexibility in consumer class action lawsuits. In this case, popularly referred to as Tobacco II, the Court revived a class action lawsuit against the tobacco industry that was decertified by the lower courts. Plaintiffs in this case brought suit against the tobacco industry alleging deceptive advertising by suggesting some brands of cigarettes posed a lesser harm than others.

The Tobacco II Plaintiffs originally brought suit against several cigarette manufacturers alleging deceptive advertising and marketing starting in the 1960's. Plaintiffs claimed that Defendant tobacco manufacturers deliberately misinformed consumers about the link between cigarette smoking and disease. Plaintiffs further alleged that Defendants intentionally misrepresented their commitment to determining and disseminating the scientific truth regarding smoking and health. The class was certified by the lower court, but after the passage of Proposition 64 in 2004, the trial court granted Defendants' motion to decertify the class. The trial court relied on the theory that Proposition 64 required each member of the class to prove injury in fact, and as such, determined that individual issues predominated and class action litigation was neither efficient nor manageable.

At issue in the California Supreme Court, decision was the interpretation of Proposition 64 and its effect on consumer class action litigation with regard to violations of California's Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq. California's UCL allows any person to bring suit seeking an injunction or any other equitable relief against a business engaged in "unlawful, unfair, or fraudulent" practices. Proposition 64 functionally limited consumers' right to sue when a company's wrongdoing caused the consumer monetary or property loss. Proposition 64 was passed in an effort to stop frivolous lawsuits that relied on mere technicalities of the law brought against small businesses, where lawyers used litigation as a tool to unethically pocket the money businesses inevitably paid to make such suits disappear.

The crux of the California Supreme Court ruling in Tobacco II is its interpretation of the "standing" requirement posed by Proposition 64. The Court set out to determine whether in a class action each unnamed class member is required to demonstrate standing, or whether the class representative's establishment of standing is sufficient to proceed on a class basis. The Court ultimately held that in a misrepresentation action, only the class representative is required to prove injury in fact and demonstrate "actual reliance on the allegedly deceptive or misleading statements, in accordance with well-settled principles regarding the element of reliance in ordinary fraud actions." Tobacco II, 46 Cal. 4th at 306. Additionally, the Court held that a Plaintiff is only required to allege that misrepresentation was an immediate cause of the injury, not the sole or even decisive cause of the injury.

Lower courts have consistently dismissed cases brought by consumers on a class wide basis by stringently construing the standing requirement of Proposition 64. Justice Carlos R. Moreno in Tobacco II states, "It is clear that the proponents did not intend to eliminate…actions to protect Californians from unfair business practices." Id. at 317. The California Supreme Court rejected Defendants' argument that allowing absent class members to avoid satisfying the standing requirement imposed by Proposition 64, would allow them to assert claims they would not be able to assert individually. The Court stated that Defendant's argument improperly focused on Plaintiffs instead of on Defendants' conduct. By recognizing the intent behind the passage of Proposition 64, and the broad and potentially dangerous effect of recent judicial interpretation of the legislation, the California Supreme Court reinstated consumers' ability to effectively assert their rights using class action litigation against businesses that operate unjustly within the meaning of California's Unfair Competition Law.

A dissenting opinion by Justice Marvin Baxter argues that the majority holding leaves open the possibility of the very abuses Proposition 64 was passed to curtail. In the dissenting opinion, Justice Baxter challenged the process supported by the majority and argues that each class member should be required to prove that he or she actually relied on the allegedly deceptive advertising in purchasing cigarettes. The majority however recognized that this is a burden that would be nearly impossible to meet for trial lawyers representing injured consumers.

A California inmate filed a civil rights lawsuit because he complained about his peanut butter and jelly diet. Another inmate brought suit because he claimed that prison officials implanted his brain with a tracking device linked to Zargon alien intelligence. Another inmate brought suit because during a prison riot, his Gideon Bible was destroyed.

Congress enacted the Prison Litigation Reform Act of 1995 (PLRA) to curb the floodgates of frivolous lawsuits brought by prison inmates.1 In 1997, prisoner lawsuits numbered 8,235 annually. That number rose to more than 40,000 in 1996.2 The reforms brought about by the passage of the PLRA were intended to act as the proverbial thumb in the dike to stem the tide of prisoner litigation.

This article will address the "administrative exhaustion of remedies" requirement of PLRA. The Act provides as follows: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted." Inmates asserting civil rights violations are required to exhaust administrative remedies available at the place of their incarceration prior to bringing a suit in federal court. If an inmate files a lawsuit in federal court before exhaustion of administrative remedies through that inmate's prison grievance system, it will almost certainly be dismissed.

What is exhaustion? Exhausting your remedies for purposes of complying with the PLRA necessitates the filing of a grievance and pursuing all available administrative appeals. In California prisons, this is usually a four-step process. The California Code of Regulations (CCR), Title 15 §§3084-3085 set forth the rules that govern 602 appeals. The grievance procedure begins at the Informal Level and continues through three levels of Formal Review. Nearly all appeals must first be given to the staff member who is causing the problem. The staff member has 10 working days to answer (Part C of the form) after which the 602 is returned to the inmate. 15 CCR§ 3084.6(b)(1). If dissatisfied with the Informal response, the inmate fills out Part D of the 602 and sends the form to the Appeals Coordinator for First Formal Level review.

As an example, an inmate with a medical issue would initiate the process by filing California Department of Corrections Form, (CDC) 7362, which is a Request for Medical Services. Once an appointment is scheduled, a healthcare provider sees the inmate, and if the inmate is dissatisfied with the services provided, a CDC form 602 can be filed, which begins the grievance process. In the case of a medical complaint, the inmate should not give the 602 directly to the staff member involved in the complaint, but to the Appeal's Coordinator's office so that it can be logged and tracked. The appeals office staff will then send the appeal to the Medical Appeals Analyst, who will log the appeal and send it to the correct staff member for informal review.

The inmate must complete sections A and B of CDC form 602, which includes "describing the problem" and "requesting what action he wants taken" as to the issue presented. A response by a prison official will be made at the Informal level. If the response is unsatisfactory, the inmate will appeal to the First Level, then the Second, and finally the Third Level or Director's Level of review. All supporting documents concerning the issue the inmate is appealing must be attached to the 602 appeal form. Porter v. Nussle (2002) 534 U.S. 516 [122 S.Ct. 983; 152 L.Ed.2d 12]; McKinney v. Carey (9th Cir. 2002) 311 F.3d 1198. An inmate must file a 602 appeal even if the lawsuit seeks monetary damages, despite the fact that monetary damages are not normally awarded through the 602 process. Booth v. Churner (2001) 532 U.S. 731 [121 S.Ct. 1819; 149 L.Ed.2d 958]. Prisoners must also complete the appeal process through the Third Formal Level. Wright v. California (2004) 122 Cal.App.4th 659 [19 Cal.Rptr.3d 92].

Second Formal Level Review: Part F of the 602 is used for the Second Level to explain why the inmate does not agree with the Informal response. The appeal is sent back to the Appeals Coordinator for Second Level review. The Warden must complete the Second Level answer within 20 working days and the answer set forth in Part G of the 602 form. (15 CCR §3084.6(b)(3)).

Third Formal Level Review: If dissatisfied at the Second Level of Review, an inmate may fill out Part H and send the appeal to the CDCR Chief of Inmate Appeals for Third Level review or Director's Level. The Third Level response should be completed within 60 working days. (15 CCR §3084.6(b)(4)). An emergency appeal requesting speedy processing can be sought if serious risk of injury or harm will result through the normal processing of the appeal. (15 CCR §3084.7(a)(1)).

An inmate need not seek an Informal Level of review for the following appeals: classification committee actions, serious disciplinary rule violations; staff misconduct; Classification Staff Representative (CSR) actions; regulations; rules, policies or operational procedures; disability accommodations (15 CCR§3084.5(a)(3); transfers (15 CCR§3084.7(d); and emergency appeals (15 CCR §3084.7(a)). A prison staff member will interview the inmate as part of the First Level review. The First Level answer must be completed by the staff within 30 working days and will be documented in Part E of the 602 form (15 CCR §3084.6(b)(2).

In a multi-step grievance system, if staff fails to respond within the time limits established in the grievance system's rules, the inmate must appeal to the next stage. If the prisoner does not receive a response at the final appeal level, and the time for response has passed, the prisoner has exhausted. Courts have differed widely on when failure to exhaust might be excused. However, with respect to each claim an inmate wants to raise, and each defendant an inmate wants to name in a lawsuit, an inmate should file a grievance and appeal that grievance through all available levels of appeal.

No other means of notifying prison officials of a complaint, such as speaking to the District Attorney, the prison Priest, prison staff, flying a kite, or writing to the warden or ombudsman will constitute exhaustion. An inmate must use the available prison grievance system.

There are special rules for processing the following appeals: Medical, Disciplinary, Staff Misconduct, Disability Accommodation, Release Date and Parole Period Computation, Transfer, Visiting, Personal Property Loss or Damage, Parole Issue, and Prison Industries Authority and Joint Venture Program. California Code of Regulations (CCR), Title 15 §§3084-3085 set forth the rules for these specific appeals and the time deadlines.

Time Limits and Screen Outs: The CDCR imposes a 15-day time limit in which to submit a CDC 602 after the problem occurs or after an inmate gets a copy of the CDCR 115 or other form documenting the prison's action. 15 CCR §3084.6( c).An appeal may be rejected or to use the CDCR's vernacular "screened out" if the inmate does not meet the time requirement and the inmate cannot show a good reason why the appeal was not filed on time. 15 CCR §3084.3(c ). An appeal can be "screened out" if an inmate fails to meet other procedural requirements: duplicate appeal of one already under review or previously answered, CDC form 602 is incomplete, failure to attach necessary supporting documents. 15 CCR §3084.3(c ). An appeal could also be screened out if an inmate abuses the system by submitting more than one non-emergency appeal within a seven-day period or by submitting an appeal containing false, obscene, overly-long or unclear statements, and refusing to be interviewed by the appeal reviewer. 15 CCR §3084.4. An excessive amount of appeals can also result in further restrictions on the number of appeals an inmate can file. 15 CCR §3084.4(a) (3) and (4). If an appeal is being "screened out," an inmate should get a notice indicating why the appeal is being rejected 15 CCR§3084.3, such as failure to attach supporting documents, failure to attach CDC 7342 Request for Medical Services as in the case of a medical complaint. The inmate should attach the required documents and resubmit the appeal. If the inmate believes the decision was wrong, a new appeal should be filed complaining about the screen out and explaining why it was improper. All original documents should be attached: appeal and screen out notice. The package should be submitted to the Appeals Coordinator. Pursuing an improper screen out appeal is necessary if an inmate wants to preserve the right to file a lawsuit, because a screened out appeal will not satisfy exhaustion. Woodford v. Ngo (2006) __U.S.__[126 S.Ct. 2378, 2385; 165 L.Ed.2d 368]

An inmate should also make copies of the 602 and any supporting documents, because appeals can be lost or unanswered by prison staff. At inmate should at least make a handwritten copy. In addition, an inmate should keep notes as to when and to whom an appeal is submitted. If an inmate has problems receiving an "Informal response," send a copy of the 602 directly to the Appeals Coordinator with a letter describing the problem obtaining an Informal response and seeking assistance. There are timelines for CDCR staff to respond to 602 appeals. However, there are circumstances when witnesses are unavailable, the matter is complex, or outside agencies must be contacted. The inmate must be given written notice of the reason for the delay and the estimated completion date. 15 CCR §3084.6. If the CDCR does not comply with the time limits, an inmate may appeal this procedural violation via a CDC 602, indicating the time limits and log number of the original appeal. An inmate who can show a prison's pattern of failing to process appeals timely may be able to obtain a court order forcing prison officials to comply. Craig v. Cambra (Del Norte Superior Court) Case Nos. HCPB00)-5150 and 5151, Writ of Habeas Corpus dated Feb. 27, 2002; In re Woodham (2002) 95 Cal. App.4th 438 [115 Cal. Rptr.2d 431].

The Courts have held that failure to exhaust is an affirmative defense that must be raised by the defendants. Wyatt v. Terhune (9th Cir. 2003) 315 F.3d 1108. If the court finds that the inmate has not exhausted, the case is dismissed without prejudice, meaning that the lawsuit may be filed again as long as the statute of limitations has not run. There is not a wealth of case law on the issue of an inmate missing a deadline in the grievance procedure. An inmate should appeal through all levels of the grievance system and explain the reasons for the failure to file on time. The statute of limitations is tolled while a prisoner is in the process of exhausting. Wright v. State (2004) 122 Cal.App. 4th 659.

The prisoner grievance system may appear daunting; however, counsel can help the inmate navigate through the bureaucratic maze to facilitate preservation of an inmate's constitutional rights and avoidance of forfeiture.

1 Congress considered drafts of PLRA in 1885. In actuality the act was passed and signed in 1996 as Title VIII of the Omnibus Public Services Appropriations Act of 1996. Pub. L. No. 104-134, 110 Stat. 1321 (1996).
2 Bureau of Justice Statistics, U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics 442 (Kathleen Maquire and Ann L. Pestore, eds., 1997).