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Medical Malpractice Defendants Ordered To Produce Electronic Audit Trail of Medical Records; No Peer Review Privilege Applies

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Posted on May 20th, 2015

In Hall v. Flannery, Case No. 3:13-cv-914-SMY-DGW (S.D.Ill. May 1, 2015), a medical malpractice case, the Southern District of Illinois considered whether to order Defendants to produce the metadata and the audit trail associated with Plaintiff’s electronic medical file.

Plaintiff sought the information after receiving two “different” medical charts relating to her care. She alleged that the medical records may have been improperly altered, and that the metadata and audit trail could provide further information, including the date, time, name of person who accessed the record, the user ID, action taken, and items viewed in the record.

Defendants objected on the grounds of the peer review privilege, which protects some information related to medical professionals’ revisions and comments to medical records. Defendants asserted that this privilege, as well as the work product doctrine, protected the audit trail as to actions taken by its risk management personnel and representatives in anticipation of litigation.

Plaintiff responded that the audit trail information would be particularly relevant to her theory that the medical records were edited or altered, and that the peer review privilege does not protect from disclosure the medical record itself, of which the audit trail is a part. Plaintiff also responded that because the audit trail was not created in anticipation of litigation (because it is automatically generated), work product privilege would not protect it either.

The court looked to state law to see if the peer review privilege would shield the audit trail from disclosure. Illinois’ Medical Studies Act provided a list of information and data that is protected by this privilege, but does not expressly protect the information Plaintiff sought. The court concluded, therefore, that the entire medical record is discoverable, and that the audit trail is a part of that record because neither the peer review privilege nor the work product privilege protected the data. The court ordered Defendants to produce all portions of the audit trail responsive the Plaintiffs’ discovery requests.

ILS – Plaintiff eDiscovery Experts

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