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Judges allow disclosure of medical ‘metadata’

Doctor electronic chartMedical records have come a long way from the “clipboard hung on the foot of the bed,” in the words of one judge, and hospitals are increasingly being asked to turn over the digital data behind the modern electronic medical chart.

The so-called “audit trail” or “metadata” embedded in the software for medical documentation can reveal who made chart entries and when, and who looked at a patient’s information.

Two recent rulings from Peninsula judges may strengthen the right of a patient’s lawyer to ask for the background data from a hospital.

In May, a Hampton judge ruled that the audit trail and metadata for a patient’s hospital record was discoverable.

The challenge of keeping up with digital advances “does not diminish the intent of the law to instruct that a patient is entitled to review his or her entire ‘medical record,’” wrote Judge Christopher W. Hutton in Eason v. Sentara CarePlex Hospital (VLW 014-8-056).

This month, a Newport News judge added weight to that ruling with an order that a hospital similarly disclose its log of activities in a patient’s medical record in response to a subpoena for records in a pending medical malpractice lawsuit.

Meanwhile, a case pending before the Supreme Court of Virginia could provide a ruling on the right of a hospital to refuse to provide metadata, although arguments in that case suggested it may be decided on other grounds.

“It is a cutting edge issue nationally,” said one lawyer who has pushed the issue with Virginia medical providers.

The issue simmers because of the enormous amount of data captured by the sophisticated software that hospitals use to document patient diagnosis and treatment. The medical documentation programs store background information about every entry in the electronic chart.

Those data disclose which users accessed the chart, when they gained access and what they did while they had access.

A patient’s lawyer – considering a claim against a medical provider, a bad driver or any other tortfeasor – generally wants as much information as possible about the victim’s medical care.

Medical malpractice cases have long provided fertile ground for detective work on the part of lawyers. Missing records have surfaced as copies in some other medical office or turned up in depositions of medical staffers.

Mysterious chart entries have appeared in one institution’s medical chart, but not on copies provided contemporaneously to other providers.

Now that electronic records are the norm, legal investigation takes another form. Lawyers want the telltale data trail that reveals all the fingerprints in the file.

“The audit trail may be the key to discover whether an electronic medical record has been falsified, amended or back-dated,” wrote one attorney in the introduction to a 2010 law review article, cited by the plaintiff in the Newport News case.

A Newport News hospital held back the bulk of its audit trail in that case, argued Avery T. “Sandy” Waterman Jr., attorney for the plaintiff in Peck v. Riverside Hospital Inc.

Riverside “tried to pass off the tip of its electronic iceberg as its whole iceberg,” Waterman wrote in a brief.

After the judge ruled, Waterman said he received the hospital’s audit trail in “completely unredacted” form, subject to a protective order against disclosure outside the litigation.

Waterman said it was significant that the judge ordered production of the file in read-only electronic format as opposed to a printed copy of the file.

“Metadata is lost when only ‘printed,’” he wrote in his brief.

“Typically, lawyers are being provided paper printouts. Right there, you’re losing some information,” Waterman said in an interview.

“The real brass ring is the so-called ‘read-only’ version of the file,” he said. “I can read it all and print as I see fit.”

Riverside was represented by Richard L. Nagle and Heather E. Zaug of Fairfax. They did not immediately respond to a request for comment.

Riverside now is voluntarily providing audit trails and underlying metadata in electronic format in a separate case, Waterman said.

Such disclosures are becoming more common, said Jonathan L. Thornton of Norfolk, another medical malpractice plaintiff’s attorney.

“I think the trend is definitely going in that direction,” he said. “It’s a very good way to put together the timeline for patients. It can become very relevant. It’s really vital information.”

In February, the Virginia Supreme Court agreed to hear arguments on whether a trial judge properly refused to allow discovery of metadata in a patient’s hospital medical records.

After oral arguments in June in Temple v. Mary Washington Hospital, it appeared that a procedural issue – not the metadata contention – might dominate the high court’s review.

A ruling from the Supreme Court in Temple is not expected until the fall.

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