There’s a new problem we’re seeing in litigation. It has the potential to become extremely burdensome, expensive and time-consuming for hospitals and their staff. More and more, plaintiffs are requesting access to our clients’ Electronic Medical Records database, sometimes called “EMR in native format.”
Production of medical record copies, printed electronic medical records (“EMR”) and even audit trails has become the norm. What is not customary, however, is providing access to your institution’s EMR database. Being compelled to do so can involve significant time and expense. This includes assembling a team of information technologists, navigators, directors and, potentially, system administrators, to “drive/navigate” your electronic system at the request of plaintiffs’ counsel and/or their “EMR expert.” In this manner, they can electronically review revision histories, drop-down menus (even those not activated) and options generally available only to providers on initial data input, or trained personnel.
Our advice is to fight these intrusive requests as extremely burdensome, expensive, and unfounded. To our knowledge, there has yet to be a single instance where previously produced records (audit trails, prior drafts of documents, etc.) did not fully comply with the standard document production request. In our view, these EMR requests are solely designed to intimidate and harass the health care providers and their information technology staff.
So do not allow EMR requests in native format to become the norm. They should be aggressively challenged as an intrusive, non-productive method of discovery absent an exceedingly compelling reason and as ordered by the court.
If you need recommendations on how to challenge or defend these requests, we are always here to help. Please contact us.