Avoid Pitfalls When Seeking to Compel Production of a Medical Audit Trail
Plaintiffs Must Demonstrate Clear Purpose and Good Cause
In a recent newsletter, ILS discussed recent court opinions where the court ordered a party to produce the audit trail for an electronic medical record. With the increasing adoption of electronic medical records by hospitals and physicians, these important pieces of metadata provide critical information regarding software computer usage, indicating who accessed electronic records and when, and whether anyone altered those records. The audit trail essentially serves as an electronic “log book” for a patient’s medical care. Plaintiffs’ lawyers find this information particularly relevant in both mass tort MDLs and medical malpractice/personal injury lawsuits, where the audit trail for a medical record can prove the most compelling evidence for client success, especially where plaintiff alleges spoliation or alteration of medical records.
When a Court Might Not Compel Production of Audit Trails
Courts have freely ordered production of medical audit trails in certain situations, especially where plaintiff has put at issue whether Defendant may have altered Plaintiff’s medical records. See e.g., Hall v. Flannery, Case No. 3:13-cv-914-SMY-DGW (S.D. Ill. May 1, 2015) (ordering production of medical record to investigate possible alteration of medical record). Indeed, courts have ordered production of medical audit trails even where finding that doing so would cause the Defendant undue hardship. E.g., Peterson v. Albert Matlock, et al., Case No. 11-2594-FLW-DEA (D.N.J. October 29, 2014) (court ordered the New Jersey Department of Corrections to produce Plaintiff’s medical records in native format because the audit trail could be used to determine changes or additions to his records).
But the Plaintiffs’ bar also needs to know that courts typically require a particular showing of good cause before ordering production of a medical audit trail. In Vargas v. Lee, et. al., 2015 NY Slip Op 31048(U) (June 5, 2015), for example, a decision recently discussed on our blog, the Supreme Court of King’s County, New York, refused to compel the defendant hospital to produce the audit trail for Plaintiff’s medical records, finding that Plaintiff had not demonstrated sufficient good cause. There, Plaintiff had lost a limb to amputation after complications caused by surgery. Although the hospital produced electronic medical records, it refused to produce the audit trails for the records. The court found that Plaintiff had failed to show “good cause” because Plaintiff sought the information to discover more about the “timing and substance” of his treatment, information which the court concluded existed in the electronic records already produced.
Vargas provides a wise caution to the Plaintiffs’ bar, reminding practitioners to avoid “piling on” by seeking an audit trail in every case but to instead seek the information where specifically relevant, especially if a potential authenticity or alteration issue exists. ILS’s recommended best practice is, of course, to request the medical record in native electronic format in the first production request. In the best case scenarios, Defendants will produce the complete audit record to comply with the native format request, providing Plaintiffs with the best, most complete evidence from the outset, and helping avoid future motion practice.
Have Additional Questions About Audit Trails in Electronic Discovery?
To learn more about the production of medical audit trails, reach out to the plaintiff eDiscovery experts at ILS today.