|Claimant(s):||KENNETH HEINRICH, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF DAVID ALAN HEINRICH, DECEASED|
|Claimant short name:||HEINRICH|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||SIDNEY P. COMINSKY, LLC
BY: SIDNEY P. COMINSKY, ESQ.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: MAUREEN A. MACPHERSON, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 3, 2021|
|See also (multicaptioned case)|
The following papers were read on claimant's motion to compel:
1. Notice of Motion with Affirmation of Sidney P. Cominsky, Esq., and exhibits, filed January 27, 2021;
2. Affidavit in Opposition of Maureen MacPherson, AAG, with attached exhibits, sworn to April 7, 2021;
2. Affirmation of Lisa Alexander, Esq., in Opposition to Motion, and attached exhibits, dated April 6, 2021;
3. Attorney Affirmation of Sidney P. Cominsky, Esq., and attached exhibits, filed May 12, 2021;
4. Additional Attorney Affirmation of Sidney P. Cominsky, Esq. and Memorandum of Law, and attached exhibits, filed June 30, 2021;
5. Affidavit in Opposition of Maureen MacPherson, AAG, with attached exhibits, filed July 30, 2021;
6. Affidavit in Opposition of Shawn O'Reilly, filed July 30, 2021;
7. Filed papers: claim, answer.
Before the Court is claimant's motion to compel compliance with this Court's judicial subpoena dated July 13, 2020 and the production of documents requested in claimant's sixth notice to produce, and the renewal of claimant's prior motion to compel and preclude. These requests involve claimant's dogged pursuit of the production of the audit trails in the decedent's electronic medical record (EMR) in conjunction with the allegations of medical malpractice that led to this young man's death.
The resolution of this discovery dispute is complicated by the concurrent litigation in Onondaga Supreme Court, along with the reassignment from the original justice on the Supreme Court case and the original judge in the Court of Claims case, numerous motions, judicial subpoenas and decisions in both courts. In Supreme Court matter, the note of issue was filed in 2019, stricken, then re-filed in 2020, and there are pending numerous defense motions for summary judgment, with an adjourned trial date. No note of issue has been filed in the Court of Claims but all depositions regarding the liability issues were completed in conjunction with the Supreme Court case in June 2019.
A review of the history of the document request is critical to understanding the present issues.
1. On March 9, 2017, David Heinrich, was admitted to State University of New York Upstate University Hospital (Upstate) where he died on March 10, 2017.
2. Litigation was commenced against New York State in the Court of Claims on November 30, 2017, and against 17 individual defendants, including nurses, medical residents, attending physicians and consulting physicians, most of whom, if not all, are employees of Upstate, in Onondaga Supreme Court on May 18, 2018 (Index No. 004978/2018).
3. On November 1, 2018, in the Supreme Court case, claimant (plaintiff) filed a motion to compel the production of audit trails in the EMR pertaining to David Heinrich's treatment maintained by Upstate (Dk. 80-81) and an amended motion to compel production of the same information (Dk. 130-131). On September 10, 2019, Justice Paris of the Supreme Court denied the motion on the grounds that the Court of Claims was the appropriate forum to compel the production of the Upstate documents. (Dk. 225.)
4. On October 21, 2019, claimant filed the same motion to compel in the Court of Claims, seeking the production of the complete EMR and audit trails, as well as a videotaped deposition of an Upstate employee demonstrating the operation of Upstate's electronic records management system, further responses to a variety of discovery demands, and a "properly certified version of David's medical records." This motion was denied in part by Judge Minarik in her Decision and Order filed on May 18, 2020 ("May Order"), without prejudice. Also pursuant to the May Order, on July 13, 2020, Judge Minarik issued a judicial subpoena for the certified medical record.
5. On September 29, 2020, claimant (plaintiff) filed a motion in Supreme Court seeking a judicial subpoena of the entire medical record, including the audit trails. (Dk. 323-324). By order filed October 20, 2020, Justice Lamendola denied the motion for the following reasons: (1) it was unclear how the audit trail would determine who supervised the students and why the information was not obtained through depositions or other discovery; (2) the request was untimely given that two notes of issue had been filed and defendants' deadline for filing dispositive motions was imminent; (3) based on the affidavit of Lisa Alexander, counsel for Upstate, the audit trail did not exist and would have to be created; and (4) pursuant to Judge Minarik's May Order, the material could be sought in the Court of Claims.
6. On January 27, 2021, claimant filed the instant motion. Following oral argument on May 12, 2021, and in keeping with the mandate of the May Order, this Court issued an order requiring claimant to file a "Supplemental Affirmation clarifying what discrepancies are in the 12 requested audit trails, with reference to attached deposition transcripts" and defendant to respond, "including a response from an IT professional that the requested audit trails cannot be produced and, if not, why not." Both counsel complied.
Claimant's present motion has several aspects. First, claimant again moves for disclosure of the entire EMR and audit trails. This issue was decided by Judge Minarik with prejudice in the May Order and the proper mechanism to modify that ruling was to bring a timely motion to renew or reargue before Judge Minarik,(1) which was not done. Furthermore, although Judge Minarik considered the limited resources of the hospital given the pandemic, that was not the stated basis for her denial; she found the demands overly broad and burdensome. A change in the magnitude of the pandemic is not a "new fact" upon which claimant may bring a motion to renew the entire motion on which the May Order was based. Therefore, this Court will not revisit this aspect of the May Order.
Secondly, claimant's request to compel compliance with the judicial subpoena
is clearly an attempt to get the complete ERM and audit trails, which Judge Minarik
denied. In reviewing the submissions for the prior motion (M-94803) and the May Order, it is clear that claimant was requesting a formal certification of the record already produced by defendant. In response to the motion, defendant stated that prior to December 2017 the hospital's policy was to certify medical records only pursuant to a judicial subpoena and, since then, Upstate would provide a business record certification with every subpoenaed record request but a judicial subpoena was still required for an "official certification." (affidavit of Andrea Bleyle, dated December 10, 2019, Ex. A to the affidavit of Maureen A. MacPherson, AAG, dated December 15, 2019, M-94803). In her decision, Judge Minarik ordered a "more formal certification of David's medical record." The form subpoena that was presented by claimant for her to sign and to which defense counsel did not object did contain broad language that could be interpreted to include the entire EMR and audit trails but that is an illogical and disingenuous interpretation given that such disclosure was the primary subject of the motion and denied by the May Order.
Finally, the instant motion seeks to revisit the issue of a limited disclosure of specific dates, times and modifications of entries in the EMR and audit trail, an issue that was left open by the May Order without a deadline for doing so(2) . Contrary to defendant's argument, claimant is not barred by law of the case in making this request because the prior ruling was without prejudice for claimant to renew it. It is also not barred by any ruling of the Supreme Court because the justices clearly determined that it was both a Court of Claims issue and untimely given the status of the Supreme Court litigation.
This aspect of the motion must be put in context. Claimant seeks to obtain discovery which must meet the "material and necessary" parameter of CPLR 3101(a), long-defined as follows:
"The words, 'material and necessary', are, in our view, to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. CPLR 3101 (subd. [a]) should be construed, as the leading text on practice puts it, to permit discovery of testimony 'which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable' (3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3101.07, p. 31-13)."
(Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-07 .) Furthermore, "[t]he word 'necessary' means needful and not indispensable." (Vargas v Lee, 170 AD3d 1073, 1075 [2d Dept 2019] [internal citations omitted.] And, finally
"If there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered evidence material * * * in the prosecution or defense. (3 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3101.07.)"
(Matter of Comstock, 21 AD2d 843, 843 [4th Dept 1964] [internal quotation marks omitted].) Given the Court's broad discretion is determining discoverability, it must strike a balance between the claimant's desire to have as much information as possible and the defendant's burden of producing it. (see Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 .) It is also clear to the Court that production of the EMR and audit trails is a relatively new area of discovery, evolving from the governmental regulations requiring medical providers install recordkeeping software. Defendant's responsive affidavits express a fear that hospitals will be inundated with requests for this sort of e-discovery and they will not have the IT capabilities to handle it.
There are only two New York Appellate Courts that have decided a case involving the extent of EMR and audit trail disclosures (see Punter v New York City Health & Hosp. Corp., 191 AD3d 563 [1st Dept 2021]; Vargas v Lee, 170 AD3d 1073 [2d Dept 2019]) and one Court of Claims decision involving discovery of Upstate audit trails in a medical malpractice claim (Tran v State of New York, UID No. 2020-044-515 [Ct Cl, Schaewe, J., Apr. 16, 2020].) A review of these decisions is instructive.
In Vargas, the lower court initially denied, without prejudice, the plaintiff's demand for the audit trail in a medical malpractice case, which request was renewed following depositions and proof that the hospital had not disclosed the entire medical record. The request was again denied but that ruling was reversed on appeal, in a decision that first reviewed the general standard for "material and necessary" disclosure, and then found that
"The plaintiffs demonstrated, and [defendant] 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 (see Gilbert v Highland Hosp., 52 Misc 3d 555, 557 [Sup Ct, Monroe County 2016]; see also Matter of Irwin v Onondaga County Resource Recovery Agency, 72 AD3d 314, 320 ). Hospitals are required to maintain audit trails under federal and state law (citations omitted). 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 (see Allen v Crowell-Collier Publ. Co., 21 N.Y.2d at 406)."
(Vargas v Lee, 170 AD3d 1073, 1076-77 [2d Dept 2019].) It is notable that the defendant hospital argued, as does Upstate here, that disclosure would be time-consuming and onerous, but the Court did not limit the disclosure to only that portion of the EMR that appeared to be missing.
To the contrary, the Appellate Division First Department affirmed the lower court's denial of disclosure of audit trails, which had distinguished its case from Vargas because there was no allegation that portions of the record were lost or altered. (Punter v New York City Health & Hosp. Corp., 2019 WL 5882250 [NY Sup Ct, New York County 2019], affd sub nom. Punter v New York City Health and Hosp. Corp., 191 AD3d 563 [1st Dept 2021].)
The Court of Claims in Tran v State of New York was presented with nearly identical arguments as in the instant case, including what appears to be the same defendant affidavit from the Upstate IT specialist, Shawn O'Reilly. The Court agreed with claimant:
"Clearly whether the residents who treated Decedent during his emergent condition or the doctors supervising those residents accessed Decedent's charts may indeed lead to evidence which is relevant to determine whether the action they took was in accordance with the respective standard of care (Vargas, 170 AD3d at 1075). The Court finds that the audit log is material and relevant to the prosecution of this action."
(infra; see also Gilbert v Highland Hosp., 52 Misc 3d 555, 559 [Sup Ct, Monroe County 2016].) The Court ordered unlimited disclosure of the audit trails for the eight-day period requested.
To reconcile these divergent decisions, this Court looks to the mandate of CPLR 3101 (a) that discovery be limited to "material and necessary" and the balance of the burden on defendant to produce it. Here, claimant narrowed his request to 12 discrete entries in the EMR that clearly deal with identifying which provider had what information about the patient, when they had it, and what modifications to the several entries were made, all based on discrepancies between the deposition testimonies and the previously disclosed medical records. The decedent, a patient with a complicated pre-existing medical history, was in the hospital for approximately 36 hours before his death and was treated by at least 17 providers on several different units, with numerous treatments, tests and scans administered. There is certainly the potential that the EMR and audit trail would uncover information useful to claimant and the request is narrow enough to limit the burden on defendant.
However, the Court cannot ignore the fact that all liability witnesses, including all the defendant providers in the Supreme Court case, were deposed several years ago and claimant did not return to the Court of Claims to renew his motion to compel until eight months after the May Decision. Since liability discovery is completed in both courts, this limited disclosure of discrete portions of the EMR and audit trail cannot be used as a basis for either party to request supplemental or new depositions of any witness.
Finally, claimant requested in his original motion that the ERM and audit trail be formatted in Microsoft Excel or that defendant indicate what format was available. Defendant did not respond to this.
Therefore, it is
ORDERED that claimant's motion to compel production of the ERM and audit trail is granted in part as outlined above; and it is further
ORDERED that defendant provide an affidavit from an IT specialist regarding the formatting available for the production of the EMR and audit trail, including the feasibility of Excel format within 20 days of the filing of this order; and it is further
ORDERED that within 45 days of being notified of claimant's format selection, defendant produce the 12 ERM and audit trail documents listed in the attached appendix; and it is further
ORDERED that the remainder of claimant's motion to compel is denied, with prejudice.
September 3, 2021
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims
1. 1Judge Minarik retired from the Court of Claims in December 2020.
2.2 Defense counsel references her own email regarding an August 26, 2020 phone conference with Judge Minarik in which claimant's counsel said he would bring the motion seeking limited portions of the EMR and audit trail in a few weeks, but that was not formalized in an order.