Compelling Production of the Audit Trail in Litigation

Compelling Production of the Audit Trail in Litigation

Legal consequences abound at every corner in healthcare. Each month this blog discusses examples of what those consequences can be.

When might a plaintiff in a medical malpractice action want a defendant healthcare provider to produce an electronic audit trail, and what proofs might be offered in favor of and against production? A recent case, Vargas v. Lee, suggests some answers.

The plaintiffs in Vargas sought damages for medical malpractice. They alleged that the defendants “failed to timely and properly manage and treat [the injured] plaintiff’s ischemic injury” following surgery, and as a result he suffered swelling, infection, and gangrene that led to a partial amputation of a leg. They sought production of the audit trail held by the defendant medical center because it would reflect that the injured plaintiff’s electronic medical records had been accessed and because that would be relevant to the timing and substance of post-surgical care.

The trial court denied the request, concluding that the audit trail constituted metadata, and that metadata was “not routinely produced unless the requesting party shows good cause.” Thereafter, the plaintiffs renewed their request, arguing that the medical center had not produced the entire patient file of the injured plaintiff. The medical center objected, contending that the request was, among other things, duplicative of information it had already produced and was intended to harass the medical center. The trial court denied the renewed request and, on appeal, the Second Department of the New York Appellate Division reversed:

“The plaintiffs demonstrated, and Wyckoff does not dispute, that an audit trail generally shows the sequence of events related to the use of a patient’s electronic medical records; i.e., who accessed the records, when and where the records were accessed, and changes made to the records ***. Hospitals are required to maintain audit trails under federal and state law ***. As argued by the plaintiffs, the requested audit trail was relevant to the allegations of negligence that underlie this medical malpractice action in that the audit trail would provide, or was reasonably likely to lead to, information bearing directly on the post-operative care that was provided to the injured plaintiff. Moreover, the plaintiffs’ request was limited to the period immediately following the injured plaintiff’s surgery. The plaintiffs further demonstrated that such disclosure was also needed to assist preparation for trial by enabling their counsel to ascertain whether the patient records that were eventually provided to them were complete and unaltered ***.

In response to the plaintiffs’ threshold showing, Wyckoff failed to demonstrate that the requested disclosure was improper or otherwise unwarranted. Although Wyckoff argued that the audit trail may contain information that would not be useful to the plaintiffs, it did not dispute that the audit trail would nevertheless contain information pertaining to the medical care that it provided to the injured plaintiff in the wake of his foot surgery. Furthermore, the affidavit of Wyckoff’s vice president of information technology, in which she averred that compilation of the requested audit trail would be ‘time-consuming,’ was conclusory and inadequate to show that the requested production would be unduly onerous ***. Wyckoff similarly failed to substantiate its claim that the information contained in the audit trail had already been provided to the plaintiff. Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was to compel Wyckoff to produce the audit trail of the injured plaintiff’s patient records ***.”

What lessons might be learned from Vargas? First, as with any electronic information held by a party to litigation, an audit trail is discoverable if the audit trail contains relevant information. Indeed, if the party that held the audit trail had failed to preserve it, an argument could be made that it had engaged in spoliation. Second, if a party argues that production would be “time-consuming” and “unduly onerous,” then that party must be prepared to present specific facts that substantiate those allegations. These are lessons for both plaintiffs and defendants to take to heart.


**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.

Ron Hedges, JD, is a former US Magistrate Judge in the District of New Jersey and is a writer, lecturer, and consultant on topics related to, among other things, electronic information. He is a Senior Counsel with Dentons US LLP.
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