On-Site Inspection Precedent

An on-site inspection is not always necessary, but when it is, it can be a very difficult situation to navigate. On-site inspections may be requested for several reasons including when there are questions of the authenticity and integrity of a medical record, or to look into the technology systems at play at the medical facility. Although the evolution in e-discovery rules have made things easier in general, there is still little discussion regarding on-site inspections in medical malpractice cases.

Most hospitals state clearly in their Rights and Responsibilities that patients have the right to an on-site inspection. Sometimes you can even find their policies and procedures relating to such access. However, health care facilities often do not want to provide such access, and thus the issue is brought to court. For those instances, case law may guidance in this area.

Although there is not an abundance of federal precedent for on-site inspections, recent case law in several states has supported plaintiffs’ requests for on-site inspections. Often times this is allowed because the defense has been unable to provide adequate records for the patient or the completeness of the record is in question. In Borum v. Smith, the United States District Court of the Western District of Kentucky ordered that the defendant allow plaintiff to perform an on-site inspection.[i] The reason the court allowed it was because the plaintiffs allege the defendant was negligent in management of his practice, making review of the electronic health record relevant to the case.[ii]

It is important to note that the Judge in Borum, and other judges, have found that HIPAA is not a hinderance to the discovery process, and it should be read in concert with the Rules of Civil Procedure relating to discovery.[iii] The Courts deciding this issue have determined that it would be contrary to the purpose to allow HIPAA to interfere with the Rules of Civil Procedure and more specifically, with the discovery process.[iv] This interpretation by judges is important because HIPAA is often raised as an objection to on-site inspections. Thus, having the Rules of Civil Procedure and HIPAA read compatibly may assist plaintiffs’ lawyers in gaining on-site access. Similarly, in Rauchfuss v. Schultz, the Circuit Court of Virginia ordered that the defendant hospital allow plaintiffs an on-site inspection to access various portions of the record. Additionally, the Court ordered the defendants to provide any additional documents found by plaintiffs during the on-site inspection.[v] In Williams v. Boyle, the Circuit Court of Virginia ordered an on-site inspection, in deposition format, of all EMRs associated with the care and treatment of the patient, including audit trails.[vi] The Court in Williams also ordered the defendants to turn over other hospital related documents including:

• Medication Administration Record (MAR);

• A complete audit trail documenting when and who accessed what information;

• Policies and procedures;

• Written and email communications; and

• Factual information as part of the adverse event report. [vii]

Interestingly, Maryland’s rule 2-422 relating to discovery of documents and electronically stored information discussed on-site inspections in its committee notes. It suggests that on-site inspections should be the exception, rather than the rule.[viii] Additionally, on-site inspections should be ordered only when the party requesting can “demonstrate a substantial need” and when that party lacks a reasonable alternative.[ix] It is further cautioned that the inspection be restricted to protect confidential information and system integrity.[x] Although committee notes are by no means as authoritative as the rule itself, Maryland’s inclusion of on-site inspections proves insightful by providing the standards it expects for when on-site inspections are required. Hopefully, this is also a glimpse at the future of discovery rules in other states. With such little precedent available, it would be helpful for all parties in medical malpractice cases to have a set of standards for when on-site inspections will be granted to plaintiffs.

Until such changes are made, the medical malpractice community will continue to rely on the rules of civil procedure and case precedent to demonstrate the rights and needs for on-site inspections.

Once an on-site inspection is ordered, there are a number of items to consider:

• Systems that will be accessed;

• Representatives available for navigating the systems;

• Whether the onsite inspection will be formatted as a deposition;

• Set-up of inspection including location, time allocated, video-recording, internet access, screen visibility, etc.;

• How discovery uncovered at the onsite inspection will be produced; and

• Inspection agenda with discovery of interest prepared in advance;

Having an understanding of which system(s) discovery may reside, and the functionality and capacity of each system in advance will streamline the on-site process. Depending on the complexity of the case, it may be necessary to consult with technology and data-sourcing experts to assist with the on-site inspection process. EMR Discovery can help with the preparation of on-site inspections including crafting the agreed-upon stipulations, logistical framework, inspection agenda, and remote or on-site support.

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[i] Borum v. Smith, No. 4:17-CV-00017-JHM, 2017 WL 3014487, at *6 (W.D. Ky. July 14, 2017).

[ii] Id. at 5.

[iii] Shropshire v. Laidlaw Transit, Inc., No. 06-10682, 2006 WL 63232388, at *2 (E.D. Mich. Aug. 1, 2006); Borum, 2017 WL 3014487, at *5.

[iv] Bayne v. Provost, 359 F. Supp. 2d 234, 237 (N.D.N.Y. 2005).

[v] 4/29/15 EMR Order, at 1-2, Rauchfuss v. Schultz, M.D., (2015) (No. CL1302754V-04(DP)), 2015 WL 6125374.

[vi] Order, at 2-5, Williams v. Boyle, (2016) (No. CL 15-406) 2016 Va. Cir. LEXIS 206.

[vii] Id.

[viii] Md. Cir. Ct. R. Civ. P. 2-422.

[ix] Id.

[x] Id.