Jusletter IT

Managing legal knowledge in hospitals is crucial. Hospitals are forced to handle an enormous amount of lawsuits, be it due to possible malpractice or due to other reasons like, e.g., data privacy. Medical malpractice payouts in the U.S. reached 3.6 Billion USD in total in 2012 according to a study by Diederich Health Care [2013]. This renders it essential for hospitals in the case of a lawsuit to ensure that everything was conducted according to the law. A prerequisite for doing so is that hospital employees are aware of relevant legal regulations and are acting accordingly. This demands the consideration of a structured management of legal knowledge in hospitals.

On the one hand, the relevant legal knowledge in hospitals is extremely diverse. Depending on the organizational perspective, different types of legal knowledge are important. For example, when looking from a doctor’s or nurse’s perspective, the relevant law is law on medical standards and procedures, on patient information, transplantation law, and also other types of law like employment law, etc. From an IT department perspective, the relevant law is data privacy and data protection law, contractual law, license regulations, etc. From a purchasing department perspective, it’s mainly contractual law, budget law, etc.

On the other hand, legal knowledge has certain specific characteristics that differentiate it from other types of knowledge. Legal texts often need to be interpreted by legal experts in order to provide specific knowledge. Law is often hard to comprehend for legal laypersons. Actuality and time-dependency are very important qualities in law. The specific characteristics of legal knowledge are elaborated in more detail in Section 2.

Due to these reasons it should be ensured in hospitals that an employee is able to access the right legal knowledge in the right form at the right time. This leads to several different perceptions of legal knowledge. It can be seen as personalized information, which is data that is interpreted and processed for a certain group of individuals [Alavi/Leidner 2001] or as «a condition to access to information» [Alavi/Leidner 2001, p. 111]. This implies a management of knowledge that «focuses on exposing individuals to potentially useful information and facilitating assimilation of information» and on providing «organized access to and retrieval of content» [Alavi/Leidner 2001, p. 111]. «The mere existence of knowledge somewhere in the organization is of little benefit; it becomes a valuable corporate asset only if it is accessible, and its value increases with the level of accessibility.» [Davenport/Prusak 2000, p. 18]

Implementing knowledge management principles in organizations nowadays often comes with implementing knowledge management systems (KMS). KMS are «IT-based systems developed to support and enhance the organizational processes of knowledge creation, storage/retrieval, transfer, and application» [Alavi/Leidner 2001, p. 114]. Therefore, this paper addresses the following research question: What are challenges for the implementation of legal KMS in hospitals regarding the specific characteristics of legal knowledge?

The article at hand is structured as follows: Section 2 elaborates on specific characteristics of legal knowledge. In order to answer the research question stated above, interviews were conducted with hospital employees of six different roles. How these interviews were prepared and conducted is described in Section 3. Out of these interviews, a set of challenges that should be addressed when implementing legal KMS in hospitals was derived (Section 4). In Section 5, the results are discussed and an outlook to future research on this topic is given. Finally, the main contributions of this article are summarized in Section 6.

Knowledge management in hospitals has already been examined in several research approaches [Bohnet-Joschko 2007; Bose 2003; Stefanelli 2004]. However, the management of legal knowledge is not explicitly addressed. Legal knowledge has some characteristics that distinguish it from other types of hospital-related knowledge like organizational knowledge or procedural knowledge. These characteristics have implications for the implementation of legal KMS. In the following, three of these characteristics are described and supported by literature.

CHAR1 – Comprehensibility and Complexity: Legal text is mostly written in legalese. Distinctive features of legalese are arcane and archaic vocabulary, overspecifity and redundancy, abstraction and indirectness, grammatical complexity, and long sentences [Mathewson 2003]. Because of that, legal text is often hard to comprehend by legal laypersons, if at all. «There is plentiful evidence that lawyers’ language is hocus-pocus to non-lawyers, and that non-lawyers cannot comprehend it» [Benson 1985]. However, most legal knowledge originates from legalese texts like laws, contracts, and verdicts. Further, legal text structure is often very complex, meaning, for example, that it is traversed by references to other legal texts (e.g., paragraphs), which themselves again refer to other legal texts and so on. This makes the structure of a legal text often hard to overview.

CHAR2 – Legal Interpretation: Legal text is always subject to interpretation. For example, «laws are intentionally formulated with vague legal concepts such as ‹appropriate› or ‹sufficient›, allowing different interpretations that depend on the actual case and its underlying circumstances» [Knackstedt/Heddier/Becker 2013, p. 5]. This comes from the general idea that written law should be sufficiently abstract so to cover a broad range of (future and unforeseeable) cases. Interpretation in the context of legal hermeneutics then applies written law to a specific legal situation. So, in order to create knowledge for legal laypersons, a legal text usually has to be interpreted by legal experts.

CHAR3 – Time-Dependency: Law and legal regulations are subject to constant change. «The citizen, the economic planner, and even the specialist in the law are faced with mounting difficulties in working through the incessant flow of normative innovation and finding the law applicable to the time frames covered by the events subject to regulation» [Palmirani/Brighi 2002, p. 310]. Therefore, legal knowledge is highly time-dependent. On the one hand, it continuously has to be kept up-to-date so that it reflects current law. On the other hand, it is important to keep track of older versions of legal knowledge, because sometimes, it is necessary to apply the law which was in force at a certain point of time [Vitali 1999].

The method of semi-structured interviews was chosen to explore the challenges for the implementation of legal KMS in hospitals. In order to achieve this goal, it was necessary to examine the object of interest preferably from different perspectives. This led to a selection of interviewees with different hospital-related roles. Six semi-structured interviews were conducted in total. The interviewees were all employed at the same hospital and they represented six different perspectives within the hospital. These perspectives are a medical practitioner’s perspective (doctor), a care perspective (nurse), a legal perspective (legal advisor from the legal department), a data privacy perspective (data protection officer), a purchasing perspective (purchasing agent from the purchasing department), and an IT perspective (IT controller). These six perspectives are surely not covering all possible perspectives of a hospital but they do represent highly relevant perspectives regarding the management of legal knowledge.

For conducting the semi-structured interviews, an interview guideline was developed based on an established framework for knowledge management, the knowledge management life-cycle by Probst [2010]. The life-cycle describes six operative stages that knowledge traverses within an organization. The stages are «knowledge identification», «knowledge acquisition», «knowledge development», «knowledge distribution», «knowledge utilization», and «knowledge preservation». These stages are the basis for the interview guideline’s structure. In the interviews, all of these stages were explicitly addressed in order to explore challenges for implementing legal KMS in all knowledge management life-cycle stages. The development of the interview guideline and the conduction of the interviews took place in the context of a bachelor’s thesis [Pawelka 2012].

The results from the interviews lead to the formulation of six main challenges for implementing legal KMS in hospitals. The challenges are «providing a structured single entry point» (1), «preparing target group specific knowledge» (2), «enabling use and application of knowledge» (3), «providing continuous maintenance» (4), «preserving experience-based knowledge» (5), and «creating organizational framework conditions» (6). In the following, these six challenges are described in detail and supported by (translated and partly paraphrased) quotes from the interviews.

Challenge 1: Providing a Structured Single Entry Point

Legal knowledge that is required in a hospital is highly «complex» (Interview: Legal Advisor), heterogeneous, and depending on the perspective and role. The sources and channels that are used to acquire the relevant legal knowledge are also very heterogeneous and sometimes confusing. The relevant fields of law and the knowledge sources that were identified in the interviews are depicted in table 1.

This heterogeneity of legal knowledge and knowledge sources renders it hard for knowledge demanders to stay on top of things. «It [data privacy law] is so broad with so many different areas that it somehow contains everything. Therefore, of course, I would like to have an overview. But such a thing doesn’t exist» (Interview: Data Protection Officer). Besides directly providing relevant legal knowledge it seems to be equally important to provide information on relevant knowledge sources. In practice, the question often is «how to proceed» and «how do I get to it [the relevant legal knowledge]» (Interview: Nurse). Therefore, a challenge for implementing a legal KMS is to provide an overview over the relevant legal knowledge and knowledge sources for each application area in such a centralized (single entry point) and structured way that it becomes fast and easy to either acquire the relevant legal knowledge or to obtain the information on where to look or whom to ask (internal and external sources). Challenge 1 is, thereby, connected to the characteristic CHAR1 (Comprehensibility and Complexity; cf. Section 2).

Role	Relevant Fields of Law (as stated in the interviews)	Knowledge Sources(as stated in the interviews)
Doctor	patient (information) law, transplantation law, contract law (for research cooperation), regulations on the storage of tissue samples, regulations on medical assessments	personal experience, professional journals, legal department
Nurse	labor law, legal standards	legal code, internet, legal department, human resources department, management seminars, law gazettes, professional journals, conferences
Legal Advisor	medical law, social insurance law, aspects of public law, civil law, liability law, pharmaceutical law, patient law, transplantation law, contract law, competition law, legal dunning	external legal advisors (with specializations), legal literature, jurisdiction, professional journals, internet, seminars, regular meetings of legal advisors
Data Protection Officer	data protection law	external training courses, internet, literature, legal department
Purchasing Agent	public procurement law, house owner’s insurance law, law of obligation, corporate law, works constitution act	legal department, external legal advisors, legal literature, training courses, legal code, internet, personal knowledge collection (folder)
IT Controller	contract law (purchase contracts, service contracts, model contracts), license law, data protection law, legal regulations related to datacenters	purchasing department, legal department, personal knowledge collection (folder), data protection officer, external legal advisors, internet, training courses

Table 1: Fields of law and knowledge sources that are relevant in a hospital

Challenge 2: Preparing Target Group Specific Knowledge

The way legal knowledge should be provided in a legal KMS depends on the target group and the intended purpose. First, legal knowledge could be prepared in an activity-oriented way for practitioners like doctors or nurses. This could be achieved by creating «checklists» and «guidelines» (Interview: Data Protection Officer) out of the relevant regulations. By doing so, the practitioner only obtains information that is relevant for his work and does not have to process, e.g., information on the legal background of a certain checklist element. Second, legal knowledge could also be prepared in a training-oriented way like, e.g., by providing training material that is based on relevant regulations and can be used for legal training courses. A common problem of current workshops and seminars is «that they are not custom-tailored to what we’re doing here» (Interview: Data Protection Officer). Third, legal knowledge could be structured to give an overview (see also challenge 1) and fourth, it could be prepared for documentation-related reasons like, e.g., certain compliance audits.

Another reason for preparing target group specific legal knowledge is that from a legal layperson’s perspective, the «lack of legal expertise and the ignorance of legalese» can be obstacles for obtaining and using legal knowledge (Interview: Doctor).

In order to prepare target group specific legal knowledge, there will be a need for legal interpretation of laws and regulations, which could only be done by legal experts. «The question is always: How is the interpretation? That’s the actual point of interest. Reading legal text is one thing, but the interpretation is the ‹experienced law› where you have to rely on legal experts.» (Interview: Nurse). Therefore, a challenge for implementing legal KMS is to prepare target group specific legal knowledge on different layers of abstraction in order to raise its acceptance and support its distribution. Challenge 2 is, thereby, connected to the characteristics CHAR1 (Comprehensibility and Complexity) and CHAR2 (Legal Interpretation).

Challenge 3: Supporting and Ensuring Use and Application of Knowledge

Preparing and providing legal knowledge is futile without ensuring its use and application within the organisation. The problem is that some people do insufficiently appreciate the importance of legal knowledge and regulations. Regarding data privacy regulations, e.g., «there are people who say: We don’t need this at all. Just let me work. I want to treat patients» (Interview: Data Protection Officer). «The main problem is the people’s discipline. […] People usually do have other concerns than data privacy» (Interview: Data Protection Officer). Lacking (activity-oriented) legal knowledge may also lead to a general uncertainty about legal situations, which in turn may lead to overcautious behaviour. «We are sometimes a little bit too cautious. It’s just my opinion, but that is dependent on the sense of justice» (Interview: Nurse). The resulting challenge for a legal KMS is to support and ensure the use and application of legal knowledge. Challenges 1 and 2 already elaborate on how to prepare and structure legal knowledge so that it becomes easier to use. On top of that, legal KMS should provide further functionality to incorporate the relevant legal knowledge into everyday work processes. For example, relevant legal knowledge regarding a certain medical treatment could be automatically included into a patient’s file, who is in need of such treatment. Making the knowledge available exactly where and when it is needed may further support and ensure the use and application of legal knowledge. Challenge 3 is, thereby, connected to the characteristics CHAR1 (Comprehensibility and Complexity) and CHAR 2 (Legal Interpretation).

Challenge 4: Providing Continuous Maintenance

Keeping legal knowledge up-to-date and incorporating new or modified regulations into a legal KMS is highly important. Outdated and incorrect information in a KMS quickly lowers the acceptance and use of such systems and may even lead to a total abandonment in the long run. In the case of legal knowledge, this becomes even more important, since outdated information may also lead to non-compliant behaviour and all different kinds of related negative consequences.

In the examined case, activities to ensure the up-to-dateness of legal knowledge are still rather heterogeneous. From a medical practitioner’s perspective, «up-to-dateness is hardly ensured» (Interview: Doctor). Information in the already existent intranet system is mainly updated in a «three-year rhythm» (Interview: Nurse) in the context of a larger certification process. Short-term content updates are conducted on demand. Often, the responsibility to keep legal knowledge up-to-date lies with certain roles. The data protection officer, e.g., is responsible to acquire updates on data privacy regulations by himself and to provide these updates to all whom it may concern. He is doing this by conducting training courses every two-years, sending circular mails and updating guidelines and checklists (Interview: Data Protection Officer).

The challenge for implementing a legal KMS is twofold. On the one hand, the system itself has to provide functionality to support information updates and changes. It further has to support versioning since different versions of legal regulations over time are important because «the law to be applied is the one that was valid at the moment of the affected event, although its content may have changed in the meantime [Vitali 1999, p. 2]. On the other hand, organizational processes for the continuous maintenance of the legal knowledge on a regular basis should be implemented. Challenge 4 is connected to the characteristic CHAR3 (Time-Dependency)».

Challenge 5: Preserving Experience-Based Knowledge

Employees in a hospital gather a lot of experience-based legal knowledge during their employment. It becomes inefficient when this knowledge gets lost and, therefore, has to be obtained more than once. There are several reasons for experience-based knowledge to get lost. The main reason probably is the retirement of employees. «It [the experience-based legal knowledge] will certainly leave together with me» (Interview: IT Controller). «It disappears with me» (Interview: Doctor). Sometimes, such knowledge may also simply be forgotten because it is needed very rarely. Explicating legal experience-based knowledge in an organization is rarely done and seen as very time-consuming and effortful. «No, I do not store this [the legal knowledge] in a structured way» (Interview: Nurse). «The lessons learned, how to apply it [the legal knowledge], the assessment criteria, the leeway – this is knowledge, which is owned by oneself, and which is not shared in a structured way» (Interview: Purchasing Agent). «It would be impossible to incorporate it into everyday work» (Interview: Purchasing Agent). Often, documentation also takes place in a non-digital way «in the office using folders» (Interview: Data Protection Officer).

The challenge for implementing legal KMS in hospitals is to support the digital preservation of experience-based legal knowledge. Thereby, it is crucially important to control the related individual effort so that the continuous documentation of such knowledge can be integrated into everyday work. Challenge 5 is connected to the characteristic CHAR 2 (Legal Interpretation).

Challenge 6: Creating Organizational Framework Conditions

When implementing a legal KMS, it is crucial to define processes and to assign the tasks within these processes to specific organizational roles. This should include processes for the target group specific preparation and preprocessing of legal knowledge, continuous maintenance and updating of legal knowledge, documenting experienced-based legal knowledge, training courses, and compliance checking. Without explicitly constituting and continuously evaluating and improving such processes, the implementation of legal KMS might fail the intended goal. The dangers of such a project are manifold: Outdated knowledge, incomprehensible knowledge, unstructured knowledge, high efforts in searching and storing knowledge, and missing knowledge will decrease the acceptance of a legal KMS. It might be necessary to define new roles or to redefine existing roles in order to ensure the execution of legal KMS-related tasks. Therefore, the challenge is to support the implementation of legal KMS with appropriate organizational framework conditions.

Despite the obvious benefits that can result from implementing KMS for legal knowledge in hospitals, it is by no means a trivial task to achieve these benefits. How substantial these challenges are and how feasible it is to overcome them strongly depends on the specific circumstances of each case. For example, the bigger an organization is, the higher are the possible efficiency gains, but at the same time the higher is the (organizational) complexity of implementing a legal KMS.

It is important to mention that a legal KMS does not intend to replace a legal department or legal advisors. To the contrary, legal knowledge in a KMS needs to be interpreted and evaluated so that it can be provided in an activity-oriented way with high practical relevance. Such interpretation can only be done by legal experts. Therefore, creating the initial content of a legal KMS comes with higher initial work effort for the legal department and legal advisors. But in the long run, the legal department will be able to achieve a decrease in its workload, because employees will be able to solve open legal issues more independently and, thereby, lead to a reduction of requests. This becomes even more important when considering the rising workload legal departments are facing today: «In day-to-day business, time is simply lacking» (Interview: Legal Advisor). «The number of requests continuously climbed up during the last years […] because employees simply want to ensure themselves more and more and ask: What do I have to consider there?» (Interview: Legal Advisor). «Especially in the area of medical law, legal regulations are varying and increasing in number regarding documentation and accounting» (Interview: Legal Advisor).

The use and application of visualization techniques would be beneficial in the context of legal KMS. Using visualizations in KMS to increase comprehensibility, provide an overview, and provide entry points has, e.g., been proposed by Heide and Lis [2012]. The use of information visualization would especially contribute to challenges 1, 2, and 3 by increasing comprehensibility and enhancing the structure of legal knowledge. Current approaches from legal visualization research might also be applied in this context. For example, depictions of timelines, like proposed by Passera and Haapio [2011] might be used to visualize obligations and periods of retention.

A limitation of this article is that the challenges are mainly derived from a user’s perspective. It would be interesting for future research to evaluate the challenges also from a managerial perspective. This could reveal additional challenges (e.g., monetary challenges or organizational challenges). The next step in this line of research would then be to develop concrete means and methods within KMS to overcome the challenges. Using visualizations is just one example for this. These means and methods should be implemented and evaluated in real-life scenarios.

The benefits that may result from using legal KMS are manifold. Experience-based knowledge can be preserved more effectively, the search process for legal knowledge can be faster and more efficient, requests to the legal department can be reduced, and legal compliance can be enhanced. However, the interview analysis showed that implementing knowledge management systems for legal knowledge in hospitals is facing several challenges that need to be overcome in order to exploit the whole potential of such systems. These challenges are mainly resulting from special requirements for the provision of legal knowledge, especially comprehensibility, legal interpretation, and actuality. The additional (initial) effort related to maintaining a legal KMS and a possible lack of user acceptance also have to be considered carefully.

Acknowledgments

With special thanks to Friedrich Pawelka, who was supporting this work in terms of planning, conducting and transcribing the interviews in the context of his bachelor’s thesis. Further, I would like to thank all interviewees for their willingness to sacrifice their valuable time and, thereby, to contribute to this piece of research.

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Marcel Heddier

Wissenschaftlicher Mitarbeiter, European Research Center for Information Systems (ERCIS)
University of Münster, Leonardo Campus 3, 48149 Münster, Germany
marcel.heddier@ercis.uni-muenster.de

 

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