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Healthcare Practice
information, and thus, cannot be a part of a patient’s medical record.4
In response to these disputes, the courts are more frequently requiring production of EMRs and audit trails in some format, at least in those cases where the plaintiff can establish cause for the defendant to produce such information (e.g., based on allegations or evidence that a medical record was altered). Trial courts are increasingly finding that an audit trail is part of a patient’s medical record to which the plaintiff is entitled in such cases.5 Some courts have required that audit trails and EMR metadata be produced in pdf or “read only” format on a flash drive.6 The Kansas Supreme Court recently held, in a case involving Kansas’ open records law, that the “only accurate reproduction of an electronic file is a copy of the electronic file” and required that a patient be given her EMR in its native format.7 In other cases, the courts have ordered the defendant to give the plaintiff’s counsel and EMR expert “live” access to the plaintiff’s EMR, typically in the context of a corporate representative deposition in which the health care provider’s IT employee is the witness.8
In one extreme case involving negligence claims arising from a birth injury, following three years of litigation over the hospital’s alleged noncompliance with multiple court orders to provide access to the plaintiff’s EMR and audit trail information, including on-site, in camera inspections supervised by the judge, the trial court granted the plaintiff’s motion for sanctions. As a sanction, the court struck the defendant’s Answer
4 See Paige Krueger, Metadata – How Technology Has Changed Routine Disclosures, UIC Law Review, April 22, 2021.
5 See Wiese v. Riverton Memorial Hospital, LLC, 520 P.3d 1133 (Wyo. 2022); Luterek v. Schneider Regional Medical Center, 2022 VI Super 35U (V.I. Super. Mar. 18, 2022); Picco v. Glenn, 2015 U.S. Dist. LEXIS 58703 (D. Col., May 5, 2015); Moan v. Mass. Gen. Hospital, 2016 Mass. Super. LEXIS 28; Hall v. Flannery, 2015 U.S. Dist. LEXIS 57454 (D. Ill., May 1, 2015); Hirsch v. CSP Nova, LLC, 2018 Va. Cir. LEXIS 49 (Va. Cir., April 3, 2018); Wheeler v. United States, 2018 U.S. Dist. LEXIS 74018 (D. Kan., April 30, 2018); Gilbert v. Highland Hosp., 31 N.Y.S.3d 397, 2016 N.Y. Misc. LEXIS 1672 (N.Y. Super., March 24, 2016); Vargas v. Lee, 170 A.D.3d 1073, 2019 N.Y. App. Div. LEXIS 2071; Miller v. Sauberman, 2018 N.Y. Misc. LEXIS 5954 (N.Y. Sup. Ct., December 4, 2018); Borum v. Smith, 2017 U.S. Dist. LEXIS 109249 (W.D. Ky., July 14, 2017).
6 See Peterson v. Matlock, 2014 U.S. Dist. LEXIS 152994 (D. N.J., October 29, 2014) (denying motion to require defendant to produce electronic medical record in “native readable format”); Myers v. Riverside Hosp., Inc. 2016 Va. Cir. LEXIS 53 (Va. Cir., April 21, 2016).
7 Roe v. Phillips County Hospital, 122,810, 2023 WL 117359 (Kan. Jan. 6, 2023).
8 Picco v. Glenn, 2015 U.S. Dist. LEXIS 58703 (D. Col., May 5, 2015)
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FDCC ANNUAL FIVES 2023