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. 

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_{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.}