eDiscovery Daily Blog

Court Denies Defendant’s Request for Protective Order Against Producing Metadata for Medical Records: eDiscovery Case Law

I love it when a reader suggests a case for us to cover!  Thanks for the tip, Mike Hannon!

In Miller v. Sauberman, Index No. 805270/16 (N.Y. Dec. 6, 2018), New York Supreme Court Justice Joan A. Madden, despite the defendant’s estimated cost of $250,000 to produce metadata related to the plaintiff’s medical records, denied the defendant’s motion for a protective order and granted the plaintiff’s cross-motion to compel the production of that metadata within 30 days of the decision and order.

Case Background

In this action for damages for medical malpractice, the plaintiff’s counsel indicated that she received conflicting versions of the plaintiff’s medical record, with conflicting entries for the same items on the same record for the same days and those records were provided pre-suit.  The plaintiff argued that given the materiality of the fact as to when plaintiff developed bed sores, he was entitled to the audit trail and metadata that would presumably show when plaintiff’s electronic medical record was altered and by whom.

The defendant’s Chief Information Officer indicated his understanding that the record history was a “true record audit detailing any records with modifications that took place to the records after 7/29/14”.  However, he also indicated that they had not been able to determine the “root cause of why certain fields in the EMR print differently from the electronic version as seen on the computer screen.”  The plaintiff responded by stating that the defendant failed to provide an explanation for the “alteration” of the medical records, failed to produce the metadata and the audit trail exchanged was insufficient, since it did not cover the period after plaintiff’s discharge.

On August 16 after oral argument, the Court ordered the defendant to provide an affidavit regarding various parameters, including the software and storage systems, the date and parameters of the search, accessibility of the data in other storage systems or by other software systems and the cost of producing the requested metadata.  The vendor responsible for storing and maintaining the defendant’s electronic medical records indicated that they used “a software system called ‘SQL Server Management Studio’” and the “storage system from where the audit report was generated is called ‘SQL Server 2014’”.  The vendor also stated that “[b]ased on my many years of experience in the software and information technology sector generally, and in the area of metadata extraction specifically, in my opinion the cost estimate of producting [sic] full metadata for plaintiff’s entire medical record would be approximately $250,000 if MatrixCare were to outsource it to a vendor.”  Noting that the application is a “legacy system”, he also classified that as a “reasonable estimate, that could change extremely, either up or down, based on the specifics we would learn afer [sic] hiring the team and learning more about how the system gathers data.”

Judge’s Ruling

Judge Madden stated: “Based on the foregoing, plaintiff has made a sufficient showing for the production of metadata. Defendant has yet to provide a credible explanation for the different and conflicting versions of plaintiff’s medical record…Moreover, while the audit report is intended to show ‘all edits, changes, or modifications to any single record’ from May 8, 2014 through April 10, 2018, the report produced by Village Care shows no changes or modifications. Under these circumstances, where there is no explanation for the different and conflicting versions of plaintiff’s medical record, and where the issue as to when plaintiff developed bed sores is clearly material to plaintiff’s malpractice claim, plaintiff is entitled to the metadata for his medical record to determine if the medical record was altered, and if so, when and by whom.”  As agreed to by the plaintiff, Judge Madden limited the metadata to be produced to “Village Care’s Physician Progress Notes from May 8, 2014 through July 29, 2014”.  As a result, she denied the defendant’s motion for a protective order and granted the plaintiff’s cross-motion to compel the production of that metadata within 30 days of the decision and order.

So, what do you think?  Is it possible that it could actually cost $250K to produce metadata for a single patient’s medical records, even in a “legacy system”?  And, how do you get hired for that gig?  ;o)  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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