The Law Firm of Leisawitz Heller

Court allows access to patient metadata in malpractice lawsuit

The advance of information technology has increased the complexity of medical practice litigation by adding several new categories of information that may be demanded during the discovery phase of the case. A recent case in Pennsylvania has pushed the boundaries once again as the trial court was asked to decide whether the plaintiff's attorneys in a medical malpractice case could gain access to the so-called metadata in their client's digital medical records.

Metadata, or "audit trail" as it is sometimes called, means computer records that keep track of which persons have read entries in the digital medical records and whether the records were altered. This information does not appear in the digital documents themselves. In the case in question, plaintiff's attorneys argued that access to the metadata was necessary to reconcile "many discrepancies" between the digital records and the deposition testimony of the plaintiff's medical providers. The specific issue concerned the need for a second deposition of a nurse who was caring for plaintiff after her breathing tube was removed. Plaintiff has alleged that she was still unable to breathe normally and that removal of the breathing tube was a mistake that caused her to choke on a piece of food and suffer permanent hypoxic brain injury. According to plaintiff's attorneys, the metadata may show whether the nurse read or altered the medical records after the choking episode.

The judge found that the metadata was relevant to the case and that it may be produced "without significant cost or hardship." He therefore ordered the custodians of the metadata to provide the information to plaintiff's attorneys.

This case shows how successful prosecution of a medical practice case requires attorneys to be knowledgeable about the newest techniques to record and store medical data. The attorneys at Leisawitz Heller in Reading pride themselves on keeping abreast of changes in medical technology and in the methods of data processing and storage used by doctors, hospitals and clinics to record and store patient information.

Source: The Legal Intelligencer, "'Audit Trail' Metadata Discoverable in Med Mal Suit," Max Mitchell, April 11, 2017

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