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Ohio Supreme Court hears arguments on medical records case

RICHARD WEINER
Technology for Lawyers

Published: October 9, 2015

The Ohio Supreme Court recently heard oral arguments in a case that may define the term “medical records” for the state’s health care providers and their patients, in an argument that illuminated the differences and difficulties in Ohio courts adapting to the rapidly changing technologies of data storage and its potential discovery under law.

The case is Griffith v. Aultman Hospital, a wrongful death case involves the retrieval of heart monitoring records from the hospital—first by a surviving spouse under the Ohio medical records statute, and then under discovery rules after the lawsuit was filed.

The case reached the Supreme Court after the 5th District Court Of Appeals found in favor of the hospital. Counsel for both sides—Richard Milligan for the hospital and the Canton firm Tzangas Plakas Mannos for the plaintiff, represented their clients from the trial level to the Supreme Court argument. Attorneys Megan Frantz Oldham and Lee Plakas argued for the plaintiff/ appellee.

The appeal to the Supreme Court hinged on whether or not a medical record that was kept by the hospital in its risk management section constituted a “medical record” under a strict interpretation of R.C. 3701.04.

At issue was a set of heart monitoring strips which indicated that the patient had not been monitored for about 40 minutes, during which time had suffered heart failure, dying two days later. The monitoring strips for that time frame, and for over 30 hours of monitoring altogether, were not printed out by the attending medical staff, and so not stored in the medical records division of the hospital. However, several days later, the risk management staff did print those, or some of those, out, and that printout was stored in the risk management office.

When the patients family requested a look at the decedent’s medical records, they were denied access to the records kept in risk management. After the lawsuit ensued, the trial court agreed with the hospital that the risk management records were not “medical records” under that statute, and the appellate court agreed.

The extended (52 minute) oral argument at the Supreme Court went fairly far afield from that one particular issue, extending into requests for guidance from the justices for a potential ruling the would, by necessity, balance the needs of patients and their families to access medical records with the costs of providing those records, particularly in these current times of rapidly changing records-keeping technologies.

On real display during this argument was the real-time changing of technology from paper-based to electronically-based record-keeping, with at least one justice, Judith French, bringing the discussion to printing out records, one justice, Terrence O’Donnell, discussing land-based computer forensics, Milligan discussing the “over 150” different computer systems at that particular Aultman facility and nobody at all discussing cloud storage or pointed to the parallel federal e-discovery rules for some sort of guidance.

During the argument, a seeming factual dispute arose with Milligan stating that the hospital had provided appellant with all requested, discoverable materials and counsel for appellant disputing that claim, positions that did not seem to be resolved during the argument.

The justices had an array of questions about the facts of the case but, at the same time, were all over the map when it came to discussing the technology of medical record retention, storage and retrieval.

Chief Justice Maureen O’Connor, who has emphasized legal technology throughout her tenure in office, seemed to grasp the entirety of the technology-fact overlaps but the same could not be said about the rest of her colleagues—or it seemed counsel for the parties.

Milligan emphasized that it would be “impossible” to coordinate the data streams from the 150 or so systems in the hospital and Plakas seemed thrown off track by a question from O’Connor about “getting into the hospital’s hard drives,” an area of computer forensics that has more a place in criminal than in civil cases.

The disconnect between the medical records as printed information, versus medical information as electronic data, was evident throughout the argument and may or may not be a part of the final decision.

The court kept asking how to formulate a decision that could encompass future cases but seemed to me at least confused about the technological environment in which this decision takes place and how to project that environment into future cases.

Here’s a potential solution, subject to the always-present cost-benefit analysis, as well as the understanding that this solution is beyond the power of the court to order:

All hospital data of any kind, from any in-provider source, could be transferred to and kept permanently in a cloud data system, each data point pegged to an individual patient and kept in a discrete file folder. Whenever a patient, attorney or the provider itself needs access to that data, it could easily be provided without ever printing anything out and without the need to physically access any hard drives.

That may not be the easiest technology to accomplish, but it is a permanent solution to this problem. And that would bring the medical records industry all the way up to 2015.

Just a thought.

The entire oral argument can be found here: http://www.ohiochannel.org/MediaLibrary/Media.aspx?fileId=147162


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