May a healthcare service provider sued for malpractice withhold medical record audit trails based on the peer review privilege or attorney work product doctrine? No, according to at least one court.
A provision in the 2009 Stimulus Act encourages health care facilities to make “meaningful use” of Electronic Medical Records (EMRs) and Electronic Health Records (EHRs). (For the distinction between EMRs and EHRs, read this article).
Although medical records are increasingly digital, electronic discovery involving EMRs is often challenging because EMR software may have inadequate export functionality for e-discovery purposes. As a result, EMRs are often produced in litigation as screen shots. However, when reduced to hard copy, related data in the records becomes disassociated because there is no easy way to tie it together in printed form.
To better understand medical records, attorneys often review medical record audit trails. An audit trail is an electronic record of every change made to an EMR, such as identification of users accessing a patient record, actions taken by users and the times and dates of access. Examination of audit trails helps attorneys identify the chronology of medical care and may also evidence medical record alteration.
In Hall v. Flannery, Case No. 3:13-cv-914-SMY-DGW (S.D. Ill. May 1, 2005), a medical malpractice plaintiff alleged alteration of medical records and to prove it, she requested her audit trail from the defendant healthcare providers. However, the medical service providers refused to produce the full audit trail claiming protection under the peer review privilege and attorney work product doctrine.
As explained by the American Medical Association, peer review is “the task of self-monitoring and maintaining the administration of patient safety and quality of care, consistent with optimal standards of practice. It is the mechanism by which the medical profession fulfills its obligation to ensure that its members are able to provide safe and effective care.”
The medical providers objected to producing the information because, by statute, peer review materials are generally protected from discovery. Peer review information is protected to permit peer reviewers to scrutinize and improve patient care by offering frank discussion about cases without fear of legal or professional repercussions. The medical providers contended that the audit trial was protected by the peer review privilege because it contained entries noting when peer review committee members accessed the medical records and the records accessed.
Additionally, the medical providers also contended that the attorney work product doctrine protected information in the audit trails. The health service providers argued that the audit trials contained information about actions taken by members of the risk management department when accessing the medical records in response to the lawsuit.
The court rejected both claims of privilege. The court found the peer review privilege inapplicable because data in the audit trail was not generated by the peer review committee to further discussion about a patient’s medical care and because the audit trial contained no information about peer review discussions. “The audit trail is . . . one aspect of [the patient’s] medical record/chart that is generated in the ordinary course of the hospital’s business and not for the specific use or consideration by a peer review committee.”
Similarly the court rejected the notion that the attorney work product doctrine protected disclosure of the audit trail because it was not “created in anticipation of litigation; it is a part of the electronic medical record and is automatically generated as a function of the program” and did “not implicate the ‘core of attorney work product,’ the `mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.'”