EMR & Audit Trail Litigation

Key Points:

• New Jersey’s Appellate Division held that an inspection of a hospital’s electronic medical records, including its metadata, is discoverable despite the risks and burdens of producing such information for review. 
• A hospital’s metadata is subject to on-site inspection subject to several safeguards. 
• An inspection may lead to broader requests for a hospital’s electronic medical records, which will impact pre-trial discovery. 

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Review of electronic medical records, with a specific target of the records’ metadata, may become a normal aspect of pre-trial discovery in New Jersey medical malpractice matters. The April 18, 2023, opinion in Estate of Lasiw v. Pereira, 293 A.3d 510 (N.J. App. Div. 2023), modified and affirmed, a motion court’s decision granting the plaintiff’s motion to compel inspection of the defendant’s electronic medical records pertaining to the decedent’s hospital admission, as well as an audit trail log extending far beyond the decedent’s discharge. 

In the original motion, plaintiff (executrix of the decedent) argued that she was entitled to inspection of the decedent’s electronic medical records and audit trail pursuant to the court discovery rules, namely R. 4:18-1, which governs the production of electronically stored information. She sought an on-site inspection of the electronic medical records by her forensic documentation analysis expert for forensic examination. The inspection would consist of personnel from the defendant’s facility controlling the computer system and computer mouse, while the plaintiff’s expert reviewed the records. After an initial motion for leave to appeal was filed and granted, the motion court granted the plaintiff’s subsequent motion to compel after a “meet and confer” between counsel produced no resolution. The defendant’s subsequent motion for leave to appeal was granted. 

On appeal, the appellant-defendants argued that an inspection of their electronic medical records would provide access to their computer system. The appellant-defendants argued the risk of such access, such as the exposure of confidential information, disruption of the facility’s ongoing business, endangerment to the computer system’s stability, and exposure of the facility to a data security breach. They also argued that the inspection would be unduly time-consuming and expensive compared to the anticipated minimal production of relevant information. 

In its opinion, the Appellate Division set forth the standard of review regarding discovery motions, which defer to a trial court’s ruling, and the requirement that the New Jersey discovery rules be liberally construed to promote disclosure of information and materials. Despite the noted concerns, the Appellate Division found an on-site inspection of the electronic medical records reasonable. The Appellate Division stated that the ultimate control to access by the defendant facility’s personnel would avoid any risk.

There was one concern, however, that compelled the Appellate Division to modify the motion court’s order. The appellant-defendants argued that the motion court “failed to set forth any real guidance or protocol to govern the scope and manner of the inspection or to set any time limits on the inspection.” Thus, the Appellate Division placed certain limitations on the inspection, namely: (1) the plaintiff’s expert may inspect the appellant-defendant’s electronic medical records with the defendant’s personnel in control of the system; (2) plaintiff’s counsel may also be present and request that certain metadata be copied and produced pursuant to the discovery rules; (3) defense counsel may also be present to object to any such request; (4) no recording is permitted during the inspection; and (5) the inspection must be completed within four hours. 

The remaining issue, the request for production of an audit trail which extended to one year after the decedent’s hospital discharge, was determined to be overly broad and the result of the motion court’s mistaken exercise of discretion. The extension of time for which this audit trail was sought to be produced was based on a post-discharge note. However, the parties agreed on no other post-discharge entries. 

This decision will certainly result in more frequent requests for these types of inspections. It may be to the defendant’s benefit to respond to any demands for inspection with a request to “meet and confer” in order to set forth case-specific parameters on any inspection. It is not clear, at this time, how future opinions will expand or restrict the scope of these inspections. Depending on these future decisions, the burdensome nature of reviewing and producing such information may become an ordinary part of pre-trial discovery. 

*Justyn is an associate in our Mount Laurel, New Jersey, office. He can be reached at 856.414.6062 or JMCoddington@mdwcg.com.
 

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_{Defense Digest, Vol. 29, No. 4, December 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}