Doctors and hospitals frequently keep both paper and electronic records for their patients. In a personal injury or mass tort case, the victim’s medical data is usually the key component of the evidentiary record. But what can an injured plaintiff do if he or she suspects that defendants may have altered the medical record? The answer may be in the audit trail.
An audit trail is a type of metadata that provides a register of usage for a database or other software program, revealing how the records in the program have been accessed or changed. Litigators should be familiar with the concept of the audit trail in cases that are heavy in electronic production, as such information is a useful tool for authenticating records, exposing discovery abuse and spoliation, and even proving liability.
Cases Involving the Production of Audit Trails
The ILS plaintiff eDiscovery blog recently posted regarding a discovery dispute in the medical malpractice suit Hall v. Flannery, Case No. 3:13-cv-914-SMY-DGW (S.D.Ill. May 1, 2015). In that case, the Plaintiff alleged that the medical charts produced by Defendant had been altered after receiving two different medical charts during document production. Plaintiff sought the metadata associated with the records Defendant had produced, including the audit trail showing when the records had been accessed and by whom. Although Defendant attempted to invoke the peer review privilege, the court determined that the privilege did not apply and ordered Defendant to produce the metadata.
Compare the Hall case to Peterson v. Albert Matlock, et al., Case No. 11-2594-FLW-DEA (D.N.J. October 29, 2014), also discussed in our blog, in which the Plaintiff, a prisoner in the New Jersey Department of Corrections, alleged brutality by corrections officers. In that case, the Defendant produced PDF versions of Plaintiff’s medical records, and Plaintiff sought production of the records in native format for the following two reasons: 1) ease of review, and 2) access to the audit trail for information regarding any changes or additions made to the records.
The Defendant objected that producing the documents in the native format would be unduly burdensome, but it did not object to producing the audit trail. The court agreed that producing the documents in native format would cause undue hardship on the Defendant but still required the Defendant to produce the audit trail.
With electronic recordkeeping growing continuously more complex, it is critical that the plaintiff’s bar understands electronic discovery issues. Attorneys handling personal injury, medical malpractice or defective medical device lawsuits must conduct careful and thorough electronic discovery to ensure that their clients’ medical records accurately reflect the injured party’s condition at the time of treatment. Learn more about how the plaintiff eDiscovery database experts at ILS can help you get the full picture.