In New York, hospitals are required to keep “[a]n accurate, clear, and comprehensive medical record . . . for every person evaluated or treated as an inpatient, ambulatory patient, emergency patient or outpatient of the hospital.” 10 NYCRR § 405.10 (2015). This includes keeping an audit trail for all electronic medical records (“EMR”). See 10 NYCRR § 405.10 (2015).
An EMR audit trail is considered system metadata because it contains “a record of every change or addition to an electronic medical record” and “includes the identification of the terminal used to access the record and the date, time, and author of the change or addition to the electronic medical record.” Jeffrey L. Masor, Electronic Medical Records and E-Discovery: With New Technology Come New Challenges, 5:2 Hastings Sci. and Tech. L. J. 245, 254 (2013) (citations omitted).
Audit trails can demonstrate whether records have been changed, notes have been added, or items have been deleted from the electronic medical record. However, audit trails provide much more than simply proof of alterations. These audit trails identify who accessed the patient’s records, when they were accessed, who authored each entry, when and from what terminal. On the one hand, audit trails provide complementary data to the EMR produced and illustrate what was done and by whom at the time the patient was cared for. On the other hand, the audit trail illuminates alterations or deletions not depicted in the electronic medical record. Therefore, it is a requisite complement to the EMR.
Not surprisingly, courts have required parties to produce electronically stored information in a format that includes metadata. See Hinshaw & Culbertson, LLP v. e-Smart Tech., Inc., No. 113108/09, slip op. at 5 (N.Y. Sup. Ct. Mar. 27, 2012); Irwin v. Onondaga Cnty. Res. Recovery, 72 A.D.3d 314, 321 (4th Dep’t 2010). In Hinshaw, the court reasoned, “While certainly metadata is discoverable to determine if and when documents may have been altered, that is not the only reason for production. General information about the creation of a document, including who authored a document and when it was created, is pedigree information often important for purposes of determining admissibility at trial.” Hinshaw & Culbertson, LLP v. e-Smart Tech., Inc., No. 113108/09, slip op. at 4-5 (N.Y. Sup. Ct. Mar. 27, 2012).
Similarly, in Irwin, the court concluded that “system” metadata constituted a “record” subject to disclosure under the Freedom of Information Law (FOIL). Irwin v. Onondaga Cnty. Res. Recovery, 72 A.D.3d 314, 322 (4th Dep’t 2010). Although that case involved a FOIL request and did not specifically address whether metadata is subject to disclosure under the CPLR, the court recognized that the production of a document electronically without metadata limited the information provided. Irwin v. Onondaga Cnty. Res. Recovery, 72 A.D.3d 314, 321-22 (4th Dep’t 2010). Specifically, the information would be limited to the “actual text or superficial content of the document,” whereas when system metadata is included, there is a complete record. See Irwin v. Onondaga Cnty. Res. Recovery, 72 A.D.3d 314, 321-22 (4th Dep’t 2010).
In a case where discoverability of the EMR audit trail was at issue, Vargas v. Lee, the court held that the plaintiff did not satisfy his burden of establishing the necessity and utility of the requested audit trail because he did not distinguish the audit trail’s utility from that of its corresponding EMR. Vargas v. Lee, No. 507923/2013, slip op. at 4 (N.Y. Sup. Ct. June 5, 2015).
At issue in that case was the timing and substance of the plaintiff’s care from May 1 through May 17, 2012; so the plaintiff requested the hospital’s EMR audit trail. Vargas v. Lee, No. 507923/2013, slip op. at 2 (N.Y. Sup. Ct. June 5, 2015). The defense objected to the disclosure of the audit trail on the grounds that it constituted overreaching, was overbroad, unduly burdensome, and not relevant. Vargas v. Lee, No. 507923/2013, slip op. at 2 (N.Y. Sup. Ct. June 5, 2015). The court reasoned that the plaintiff could presumably obtain the patient treatment details from the already produced EMR and that the plaintiff did not argue there were authenticity issues or analogous salient considerations. Vargas v. Lee, No. 507923/2013, slip op. at 4-5 (N.Y. Sup. Ct. June 5, 2015).
Further, the court articulated, “system metadata production has been considered relevant when the process by which a document is created is in issue or there are questions concerning a document’s authenticity.” Vargas v. Lee, No. 507923/2013, slip op. at 4 (N.Y. Sup. Ct. June 5, 2015) (citing Aguilar v. Immigration & Customs Enforcement Div., 255 F.R.D. 350, 354 (S.D.N.Y. 2008)).
A case having a contrary result from Vargas v. Lee was Gilbert v. Highland Hospital, which was argued by Faraci Lange, LLP Managing Partner, Stephen G. Schwarz. 31 N.Y.S.3d 397 (Monroe Cty. March 24, 2016). In this case, plaintiff sought discovery of the EMR audit trail to determine: (1) whether certain physicians were involved in her care and treatment and the extent, if any, of that involvement; (2) names and times of certain entries that were missing from the EMR; (3) the accuracy of the information in the EMR; and (4) the times, locations, and actions taken by various staff members not provided on the face of the EMR. See generally id.
In granting plaintiff’s motion to compel discovery of the EMR audit trail, the court found defendant’s broad objections to production unpersuasive. Id. at 558-60. Specifically, the court reasoned the EMR audit trail was relevant to the allegations in the complaint as pleaded (or pled) by the plaintiff, was material and necessary, and did not constitute a fishing expedition. Id. Moreover, because who received what information and when was important to the claims or defenses of a party, plaintiff met the standard articulated by Vargas v. Lee. Id.
EMR audit trails could be extremely valuable in your medical malpractice action. Commentators interpreting the case of Karam v. Adirondack Neurosurgical Specialists, P.C., 93 A.D.3d 1260, have theorized that for plaintiffs’ attorneys to competently represent clients and fulfill their ethical obligations, they must have all available electronically stored information that may be relevant to their case, which would necessarily include the audit trail. See Hon. John M. Curran and Mark A. Berman, Gremlins and Glitches Using Electronic Health Records at Trial, NYSBA Journal, at 23 (May 2013).
Therefore, plaintiffs’ attorneys should be regularly asking for such metadata and determining whether it is useful in their case.
Lesley E. Neibel focuses her practice on personal injury and has worked on a range of cases, including medical malpractice, auto accidents, and products liability, since joining Faraci Lange’s Rochester office in 2015.
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