Legal consequences abound at every corner in healthcare. Each month this blog discusses examples of what those consequences can be.
Two recent appellate decisions from different states address production of medical records and the consequences to defendant healthcare providers that are unable to produce them. The decisions offer lessons on how the “medical record,” whether electronic or paper, might be defined and what sanctions might be imposed on providers that do not produce it.
The first decision is Griffith v. Aultman Hospital, 2017-Ohio-8293 (Ct. App. Oct. 23, 2017). I discussed the Griffith litigation in a previous Legal eSpeaking post in April, regarding an Ohio Supreme Court decision that interpreted a statute permitting personal representatives of patients to examine or obtain the medical record. Here is what the Supreme Court said:
“[T]he focus of the statute was on ‘whether a healthcare provider made a decision to keep data that was generated in the process of the patient’s healthcare treatment and pertains to the patient’s medical history, diagnosis, prognosis, or medical condition.’ In other words, if the data had been saved it would fall under the statutory definition of ‘medical record’ and be subject to production under the statute whether the data were maintained in the hospital’s medical records or risk management departments. The Court remanded to develop an evidentiary record as there was some doubt as to whether the data existed; it would normally be deleted 24 hours after a patient’s discharge.”
On remand, a trial court allowed discovery. The plaintiff, the executrix of the estate of a patient of the defendant hospital, served interrogatories on the hospital in an attempt to determine whether the entire record had been produced. Thereafter, the trial court granted summary judgement in favor of the hospital, finding that it had been. The Court of Appeals reversed in the October 23rd decision. (The appellate court also reversed the denial of the executrix’s motion to compel discovery, but that is beyond the scope of this blog).
In its reversal, the Court of Appeals held that a genuine issue of material fact existed about whether the hospital had produced the entire medical record. The court noted that the hospital’s production of what it considered to be the complete “chart” did not “necessarily equate to the production of the entire medical record.” Indeed, after having represented that the entire record had been produced, additional pages as well as nursing notes were turned over and the hospital never “directly and definitely” stated that it had produced the medical record as defined by the Supreme Court. The Court of Appeals then remanded to the trial court.
The other decision is Russellville Holdings, LLC v. Peters, 2017 Ark. App. 561 (Ct. App. October 25, 2017). This is a medical malpractice action arising out of the death of a patient who was admitted to a medical center and who hanged himself ten days after being discharged. Shortly after his death an attorney representing the decedent’s estate and heirs wrote to the center and demanded that paper and electronic files be preserved. After litigation was commenced the center produced “four similar, though not exact, microfiche copies” of the medical record and represented that the original one had been destroyed. The trial court found that, “the original medical file in question was so important to the case that its preservation was essential to a just adjudication” and struck the center’s answer. The Court of Appeals affirmed. In doing so, that court noted the existence of two fact questions which could not be resolved because of the loss of the original record: (1) Whether orders of guardianship of the decedent were present in the record when he was released and (2) whether written discharge notes of another patient had been placed in the chart rather than those of the decedent.
What lessons might be drawn from Peters and Griffith? First, however the “medical record” may be defined, it should be preserved once a duty to preserve arises. Second, when preservation becomes necessary, care should be taken to preserve the record in the appropriate form or forms. For paper, that decision would appear straightforward: Keep the paper. For electronic health records, what form or forms of preservation may be problematic and dependent upon the unique circumstances of a particular litigation. These lessons demonstrate the important of a unified approach to information governance.
**Editor’s Note: The views expressed in this column are those of the author alone and should not be interpreted otherwise or as legal advice.