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Defense Digest

On the Pulse…Marshall Dennehey’s National EMR and Audit Trail Practice Group Is Ready to Assist with Health Care Technology Litigation Issues

Defense Digest, Vol. 30, No. 3, September 2024

September 1, 2024

by Matthew P. Keris

Several years ago, Marshall Dennehey recognized the plaintiff bar’s increased interest in pursuing two types of medical negligence cases: one on the medicine and the other on the electronic medical record (EMR). In response, it became one of the first, if not the first, defense firms to devote a practice group to assisting health care clients and other counsel with EMR and audit trail preservation, production, expert, and discovery issues. With the widespread integration of AI into health care, it is readily apparent that medical malpractice cases will become even more complex and expensive to litigate and will involve third-party technology vendors as parties. We can provide efficient and sound advice in this regard, in addition to the services we already provide.

Our specialized and experienced practice group can assist health care systems and their counsel in many ways from discovery through trial. Our group routinely assists with formulating responses to novel discovery requests. In addition, we involve third-party electronic medical record vendors in the litigation when their assistance is necessary in discovery, whether it be to explain a production issue or include them in an ongoing discovery dispute. Along those lines, our group has had success compelling plaintiffs’ early disclosure of their EMR and audit trail experts for purposes of challenging their qualifications and representations to the court and counsel. 

Deposition preparation is another area where this practice group provides focused assistance. We can help to correlate a provider’s involvement in the documentation in comparison to the audit trail, as well as provide support with respect to a corporate designee’s deposition relating to the preservation and production of the EMR. As the chart becomes more complex, witnesses need to be adequately prepared not only on the medicine, but on the EMR and AI as well.

Advice on the retention of the most qualified, effective, and experienced experts is also a frequently provided service of the group. As chair of this practice subgroup, I have established a working relationship with the American Medical Informatics Association (AMIA) and its leadership on the provision of qualified expert services in the field of clinical informatics in health care litigation. Far too often, courts and counsel are relying on “junk science” from persons who claim to be EMR and audit trail experts, but who have sketchy and limited experience. By retaining appropriately trained clinical informatics (whom I refer to as “chart physicians”) to assist in their cases, health care systems can get a better handle on record production, reduce litigation expenses, and diminish discovery motion practice through the objective and qualified advice of a true expert on EMR-related issues. 

On-site inspections and interactions with the EMR during discovery by plaintiff’s counsel is also becoming more of a regular request and is expected to occur more frequently. Our practice group will identify the appropriate records custodian to navigate the chart and prepare them in advance if they are asked questions during the inspection. We will also mandate acceptable inspection protocols well in advance of the event so it is conducted in a scientifically appropriate manner that is least intrusive and inconvenient to health systems. 

Since the mid-2000s, we have monitored and reported legal precedent for new discovery and trial issues associated with the EMR, audit trail, and AI. Very few can boast a greater legal acumen than our group. As the EMR becomes more of a tool that augments medicine, rather than an information repository with the integration of AI, new legal thought and litigation strategies need to be considered in cases, particularly where a medical error may be due to the EMR or AI. We can assist with the strategic decision of whether and how to include EMR and AI vendors in your cases, and we can outline the legal benefits and pitfalls to be considered prior to doing so. 

Medical negligence cases are not going to become less complex as AI is utilized within the EMR. To the contrary, they are going to become more complex, with novel factual and legal issues facing your counsel that have never been raised before. Going into these cases with the right guidance and experience is necessary. Please consider Marshall Dennehey’s EMR and Audit Trail Discovery Practice Group in the future when the necessity of specialized legal services are required. It is not a matter of if you will come across a complex EMR or AI issue, it is just a matter of when. Let us help you or your counsel. 

 

Defense Digest, Vol. 30, No. 3, September 2024, 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. © 2024 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.

Firm Highlights

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Thought Leadership

Ohio Supreme Court Holds That a Binding Appraisal Award May Not Be Set Aside Absent Specific Evidence of Manifest Mistake or Fraud

On July 23, 2026, the Ohio Supreme Court issued a rare opinion on the binding effect of an appraisal award in a property insurance policy.  The Court in One Church held: A binding appraisal award will not be set aside unless an error is so palpably wrong that it undermines the intent of the agreement, such as corruption or gross mistake, not a mere error of judgment—To plead a claim of mistake with particularity as required by Civ.R. 9(B), facts alleged in a complaint must constitute the elements of mistake—Allegation that additional, hidden damage was discovered after appraisal award failed to state a claim of mistake that could justify setting aside binding appraisal.  The case arose out of a claim brought by One Church against its insurer, Brotherhood Mutual Insurance Company for roof damage from a storm. Pursuant to the terms of the insurance policy, the parties agreed to submit the matter to appraisal. The two appraisers inspected the building, and both appraisers agreed that the damages were $313,271.98. The insurer paid the agreed appraised amount.  Thereafter, the insured submitted a claim for an additional $206,663.09 in damages. The insured argued that these additional damages were not discovered until after the repairs began, and that they should be permitted to submit an additional claim, even though there had already been a binding appraisal of damages. The insurer refused to pay the additional damages, and the insured sued for breach of contract and bad faith.  In the trial court, the insurer moved to dismiss for failure to state a claim, arguing that the binding appraisal award barred any further claims. The insured took the position that additional hidden damages could not be discovered until after the repairs began, and therefore there was a mutual mistake. The trial court dismissed the case on the insurer’s motion, because there was no “evidence of fraud, misfeasance, or mistake”. The Court of Appeals agreed that appraisal awards are generally binding, but noted that an appraisal award can be set aside for fraud or manifest mistake. The Court of Appeals reversed and remanded the case to the trial court, finding that the insured had pled mistake with sufficient particularity. The insurer appealed to the Ohio Supreme Court. On appeal, the Ohio Supreme Court reversed the Court of Appeals, and reinstated the trial court decision dismissing the case for failure to state a claim upon which relief can be granted. The Supreme Court found that since the insured had already demanded appraisal, and the appraisal award was binding, “something more than error of judgement, such as corruption in the arbitrator, or gross mistake” must be pled with particularity, and proven for the insured to override the appraisal award. Since the complaint did not allege fraud or manifest mistake with sufficient particularity, something more than a mere error of judgment, the complaint was insufficient to state a claim.  The complaint in this case did not challenge the appraisal award. It pled that additional damages were discovered that were not apparent when the appraisal was done. It did not specify “who discovered the damages, how they were discovered, where they were found, why they were previously hidden, or why they rise to the level of a manifest mistake that the “appraiser would have corrected...had it been called to his attention”. Id at ¶22 citing Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970). Cases deciding the effect of appraisal awards are unusual. The Ohio Supreme Court’s decision in One Church relies primarily on 19th century case law for its conclusion. This emphasizes the fact that there is minimal case law deciding the effect of binding appraisal clauses in property insurance policies, and makes this case all the more significant. A lengthy dissent was written by Justice Fisher, who would have affirmed the Court of Appeals decision reversing and remanding the case for a decision on the merits. Of course, the decision works both ways, and an insurer dissatisfied with a binding appraisal award will likewise be without further recourse absent evidence of corruption, fraud, misfeasance, or manifest mistake, which must be pled with particularity. To constitute manifest mistake, “the mistake must be of such character that the arbitrator or appraiser would have corrected it had it been called to his attention.”  Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970).  The majority opinion does not specifically identify what would have been sufficient to plead mistake with particularity, or if the insured could have amended the complaint to overcome the deficiencies. The dissent argues that this was not really a case alleging mistake, but rather a question of contract interpretation. The insured did not challenge the appraisal, but argued that the hidden damage was not part of the appraisal, and the appraisal only covered the known damages.  However, this argument did not carry the day with the majority.  *Thomas F. Glassman, a shareholder in Marshall Dennehey’s Cincinnati office, filed a brief in the Ohio Supreme Court on behalf of the Ohio Association of Civil Trial Attorneys, in support of the insurer’s position.

Portrait of Carolyn Schweizer, with text below: Philadelphia Office Managing Attorney

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

Thought Leadership

State of Insurance: Q2 Notes From Pennsylvania

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Jason Banonis Holds PDI Attorney of the Year Award with the PDI President

News

Jason Banonis Named Attorney of the Year by the Pennsylvania Defense Institute

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

Thought Leadership

The Best Defense is Already in the File: Documentation in Civil Rights Litigation

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent