Medical Record Metadata Ordered To Be Produced In Light Of Different And Conflicting Versions of Plaintiff’s Medical Records
- ILS Team
In Miller v. Sauberman, Index No. 805270/16 (N.Y. Dec. 6, 2018), a New York Supreme Court Justice denied Defendant’s motion for a protective order and granted Plaintiff’s cross-motion to compel the production of metadata related to Plaintiff’s medical records, despite Defendant’s estimated cost of $250,000 to produce such records.
In an action for medical malpractice, Plaintiff asserted that he received conflicting versions of his medical records, with conflicting entries for the same items on the same record for the same days. Arguing that given the materiality as to when he developed bedsores, Plaintiff claimed that he was entitled to an exhaustive audit trail and metadata that would highlight when Plaintiff’s electronic medical record was altered and by whom.
In response, Defendant’s Chief Information Officer stated his understanding that the record history was a “true record audit detailing any records with modifications that took place to the records after 7/29/14”. However, Defendant’s CIO further stated that up until this time, they had not determined a “root cause of why certain fields in the EMR print differently from the electronic version…” Unsatisfied, Plaintiff moved to compel the production of such metadata on the grounds that Defendant’s explanation failed to explain the “alteration” of the medical records, failed to produce the metadata, and that the audit trail produced was insufficient since it failed to cover the period after Plaintiff’s discharge.
After oral argument, the Court ordered Defendant to provide an affidavit regarding various parameters, including the software and storage system, the date and parameters of the search, accessibility of the data in other storage systems, or by any other software systems and the cost of producing the requested metadata. Defendant stated, in part, that the cost estimate of producing full metadata for Plaintiff’s entire medical record would be approximately $250,000 if it were outsourced to a vendor and that the estimated cost could change in extreme ways based on the specifics of how the system gathers data. In response to Defendant’s cost claim, Plaintiff stated that the metadata for just the physicians progress notes would be acceptable.
Despite Defendant’s arguments, the Court held: “Based on the foregoing, Plaintiff has made a sufficient showing for the production of metadata. Defendant has yet to provide a credible explanation for the different and conflicting versions of Plaintiff’s medical record…Moreover, while the audit report is intended to show ‘all edits, changes, or modifications to any single record’ from May 8, 2014 through April 10, 2018, the report produced by Village Care shows no changes or modifications. Under these circumstances, where there is no explanation for the different and conflicting versions of Plaintiff’s medical record, and where the issue as to when Plaintiff developed bed sores is clearly material to Plaintiff’s malpractice claim, Plaintiff is entitled to the metadata for his medical record to determine if the medical record was altered, and if so, when and by whom.” As a result, the Court denied Defendant’s motion for a protective order and granted Plaintiff’s cross-motion to compel the production of that metadata within 30 days of the decision and order.