Opinion
Index No. 607317/2021 Motion Seq. Nos. 002 003
04-10-2023
JANE A. ARNOTT, as Executor of the Estate of JOHN M. ARNOTT, Deceased, and JANE A. ARNOTT, Individually Plaintiffs, v. THEODORE M. PERLMAN, M.D., PROHEALTH CARE ASSOCIATES, L.L.P., SHAHAB AHMAD KHAN, M.D., JOHN A. CAVAGNARO, P.A., ROBERT E. SMITH, P.A., AMERVIR RANA. R.N., LACEY MANTOVANI, R.N. and ST. JOSEPH HOSPITAL, Defendants.
Unpublished Opinion
Motion Submitted: 1/27/2023
PRESENT: HON, CONRAD D. SINGER, Justice
DECISION AND ORDER ON MOTIONS
HON. CONRAD D. SINGER, J.S.C.
The following papers were read on these motions:
Notice of Motion for Discovery and Supporting Papers [Seq. 002]. .................................................... X
Affirmation in Opposition to Motion and Supporting Papers [Seq. 002]. ............................................ X
Reply Affirmation [Seq. 002] .............................................................................................................. X
Notice of Cross Motion for Summary Judgment and Supporting Papers [Seq. 003]. ........................... X
Affirmation in Opposition to Motion and Supporting Papers [Seq. 003]. ............................................. X
Reply Affirmation [Seq. 003] .......................................................................................................... X
Upon the foregoing e-filed papers, the motion filed by the plaintiffs, JANE A. ARNOTT, as Executor of the Estate of JOHN M. ARNOTT, Deceased, and JANE A. ARNOTT, Individually ["plaintiffs"], for an Order pursuant to CPLR Section §3101, compelling the defendant, ST JOSEPH HOSPITAL ["ST. JOSEPH HOSPITAL" or the "Hospital"] to provide a copy of the audit trail for the electronic medical record of the decedent, John M. Arnott [the "decedent"], for his confinement from March 27, 2020 to March 30,2020, by a date certain [Seq. 002]; and the cross-motion of defendants, JOHN A. CAVAGNARO, P.A. ["CAVAGNARO"], ROBERT E. SMITH, P.A. ["SMITH"], AMERVIR RANA, R.N. ["RANA"], LACEY MANTOVANI, R.N. ["MANTOVANI"], and ST. JOSEPH HOSPITAL [collectively, "HOSPITAL DEFENDANTS"], opposing the plaintiffs' motion to compel, and seeking an Order pursuant to CPLR § 3103, granting a protective order which denies the disclosure of the audit trail for the decedent's electronic medical record, and suspends disclosure pending the application for protective order [Seq. 003] are determined as hereinafter follows:
The plaintiffs' motion to compel [Seq. 002] includes an affirmation of good faith which establishes the diligent efforts undertaken by counsel to resolve the issues which gave rise to their respective motions, as required by 22 NYCRR 202.7(a).
The plaintiffs commenced the instant malpractice action by filing a Summons and Verified Complaint with Certificate of Merit on June 10, 2021 (the "Complaint"). Issue has been joined as to all defendants by virtue of them serving their respective Answers. This case arises from the care and treatment rendered to the plaintiffs' decedent at defendant hospital, ST. JOSEPH HOSPITAL for an acute gastrointestinal bleed, such care allegedly being rendered from the decedent's presentation to the Emergency Room on March 27, 2020, at approximately 8:00 PM, to the time of his death on March 30, 2020 at 8:44 AM. The plaintiffs allege that the defendants deviated from accepted standards of care in monitoring and treating the plaintiffs' decedent for his acute gastrointestinal bleed.
Upon the decedent's admission to ST. JOSEPH HOSPITAL, he was assigned to hospitalist, SHAHAB AHMAD KHAN, M.D. ["Dr. Kahn"], and THEODORE M. PERLMAN, M.D. ("Dr. Perlman"), a gastroenterologist, who was asked to evaluate him. Drs. Khan and Perlman are associated with defendant PROHEALTH CARE ASSOCIATES, LLP ["PROHEALTH"] [collectively, "PROHEALTH DEFENDANTS"]. The plaintiffs' decedent was subsequently admitted to the monitored patient care unit called the Step-Down Unit ["SDU"], where he came under care of the Hospital's critical care physician's assistants ["PAs"]. During the 7 AM to 7 PM hours of Sunday March 29, 2020, the PA was defendant SMITH. During the hours spanning 7 PM on March 29, 2020, to 7 AM on March 30, 2020, the PA was defendant CAVAGNARO. From 7 AM on March 30, 2020, to the time of the decedent's death, Erick Ruales, PA, was the decedent's responsible provider. PA Ruales was not employed by ST. JOSEPH but was loaned for the first time that day from his position at St. Francis Hospital to ST. JOSEPH to care for patients. The decedent received nursing care from defendant MANTOVANI from 7 AM to 7 PM on Sunday March 29, 2020, and from 7 AM to the time of his death on Monday March 30, 2020. From 7 PM on Sunday March 29, 2020 to 7 AM on March 30, 2020 defendant RANA provided nursing care to decedent.
The plaintiffs have claimed, inter alia, that defendants ignored clear and disturbing signs and symptoms of the decedent's critical condition and impending cardiac arrest, in particular those which manifested on Sunday March 29, 2020 after the decedent was admitted to the SDU. They further allege that the decedent did not simply and quickly deteriorate to a cardiac arrest without warning, but rather, there were signs clearly warning the defendants of his impending demise if they did not act.
The plaintiffs' motion seeks an Order compelling the defendant ST. JOSEPH HOSPITAL to furnish an audit frail for the Hospital's electronic medical record ("EMR") pertaining to the decedent for the period of time that the decedent was confined at the Hospital, beginning March 28, 2020, through the time of his death, which was in the morning of March 30, 2020.
One court has described an audit frail as follows:
"The audit trail is a document that shows the sequence of events related to the use of and access to an individual patient's EHR ["electronic health records"]. For instance, the audit trail will reveal who accessed a particular patient's records, when, and where the health care provider accessed the record. It also
shows what the provider did with the records-e.g., simply reviewed them, prepared a note, or edited a note. The audit trail may also show how long the records were opened by a particular provider. Each time a patient's EHR is opened, regardless of the reason, the audit trail documents this detail. The audit trail cannot be erased and all events related to the access of a patient's EHR are permanently documented in the audit trail. Providers cannot hide anything they do with the medical record. No one can escape the audit trail." (Gilbert v. Highland Hosp., 52 Misc.3d 555, 557 [Sup. Ct. Monroe County 2016 [citing to 2011 Health L. Handbook § 10:9]).
According to the plaintiffs, the technology of making the Hospital's EMR, as with all electronic records, created meta data, with such meta data being information that is not apparent from the printed face of the electronic document. Meta data has been described as "data about data". The plaintiffs further contend that an audit trail is a type of "meta data" that has been described as application meta data, and that when the question is who, when and where a computer entry was made, changed, viewed and printed, the audit trail contains the answer. "Hospitals are required to maintain audit trails under federal and state law". (Vargas v Lee, 170 A.D.3d 1073, 1076 [2d Dept 2019] [citing to 45 CFR 164.312(b); 10 NYCRR 405.10(c)(4)(v)]).
The plaintiffs argue that they are entitled to the audit trail based on, inter alia, the HITECH Act, a federal statute which allows patients to request an audit trail showing all disclosures of their electronic health information. They further argue that fairness dictates the plaintiffs' free access to the audit trail, as the defendant and its counsel have free access thereto. They further argue that the audit trail will be essential evidence required by the plaintiffs to oppose an anticipated summary judgment motion which the plaintiffs expect the defendants to file and which the plaintiffs anticipate will be based on, inter alia, Covid-19 immunity defenses. They allege that the audit trail will provide them with added proof to respond to a CO VID-19 immunity defense and to establish that elements of the care rendered to the decedent were still grossly negligent. They also assert that the audit trail will be relevant on several key issues in this case, including as to what a provider knew, and when they knew it, which are crucial to the prosecution of this action to show that there was not merely negligence but reckless disregard for decedent's safety.
The PROHEALTH DEFENDANTS oppose the plaintiffs motion and assert that "no audit trail exists" and that one "must be created"; They further contend that patients do not have an automatic right to an audit trail and they must make a showing of need that is more than mere conjecture. They argue that in this case the plaintiffs have not shown good cause for the production of an audit trail, and that there is no allegation in the plaintiffs' motion that a designated record set from the EMR was not produced or that it was altered.
The Hospital Defendants cross-move and oppose the plaintiffs' motion. The Hospital Defendants contend that the plaintiffs' demand for the audit trails should be denied pursuant to executive order 202.10, as the provisions set forth therein relieved healthcare providers of recordkeeping requirements while the healthcare provider was acting in good faith and responding to the COVID-19 pandemic. The Hospital Defendants argue that any claims revolving around recordkeeping are subject to dismissal pursuant to Executive Order 202.10, and the plaintiffs' request for the audit trail is moot considering the immunity extended to the defendants. The Hospital Defendants further argue that, even if the Court disagrees with them that the plaintiffs are not entitled to the audit trail under Executive Order 202.10, the plaintiffs have still failed to provide any legitimate reason as to why they are entitled to the audit trail in this case.
"Disclosure in civil actions is generally governed by CPLR 3101 [a]". (Vargas v Lee, 170 A.D.3d 1073, 1075 [2d Dept 2019] [citations omitted]). CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof'. (CPLR 3101 [a]). Furthermore, "the Court of Appeals has emphasized that '[t]he words, "material and necessary", are ... 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'". (Vargas, 170 A.D.3d at 1075 [citations omitted]). "Accordingly, in this context, '[t]he word "necessary" means needful and not indispensable" (Vargas, 170 A.D.3d at 1075 [emphasis in original] [citations omitted]).
Contrary to the arguments advanced by the defendants, the plaintiffs are not required to allege or demonstrate that the designated EMR set received from the defendants was incomplete and/or altered in order to compel the production of the audit trail. Rather, the plaintiffs must satisfy the threshold requirement of demonstrating that the audit trail requested is "reasonably likely to yield relevant evidence". (Vargas, 170 A.D.3d at 1076; see also Gilbert v Highland Hosp., 52 Misc.3d 555, 559 [Sup Ct Monroe County 2016]).
In this case, the Court finds that the plaintiffs have put forth sufficient materials to demonstrate that the Hospital's audit trail, limited to the time period beginning when the decedent was admitted to the SDU, and through the time of his death, is "reasonably likely to yield relevant evidence". The plaintiff has demonstrated, and the defendants have not disputed, that the audit trails will determine "who made the [EMR] record, on what date, at what time and from where" and will also show any deletions or modifications in the EMR not reflected in what ST. JOSEPH has already produced. The plaintiff has alleged, inter alia, that during the hours from when the decedent was transferred to the SDU on March 29, 2020, at approximately 04:30 AM, to the time of his death pronouncement on March 30, 2020, at 08:44 AM, the decedent's condition declined without the defendants' appreciation, recognition or timely intervention, until just before he coded on March 30, 2020, at 08:30 AM.
The requested audit trail, as limited by the Court to the time period from when he was admitted to the SDU through the time that he was pronounced as deceased, is reasonably likely to lead to information which bears directly on the issue of the monitoring and treatment of the decedent while he was in the SDU, and is reasonably likely to yield relevant evidence that is necessary [i.e., "needful"] to refute the defendants' affirmative defenses which are based on COVID-19 immunity defenses and premised on, inter alia, the New York Emergency or Disaster Treatment Protection Act ["EDTPA"], the Public Readiness and Emergency Preparedness ["PREP"] Act, and the Coronavirus Aid, Relief, and Economic Security ["CARES"] Act.
In this case, the plaintiffs have satisfied their threshold burden by demonstrating that, inter alia, several of the provider defendants were unable to recall the decedent or their care of the decedent during the last hours of his life, that the Hospital implemented certain COVID-19 protocols which may have impacted the monitoring and care that the decedent received, and that there appear to be gaps in the documentation of the defendants' treatment of the decedent.
The Court finds that the defendants' arguments in opposition to the plaintiffs' motion fail to demonstrate that the requested disclosure is improper or otherwise unwarranted. (Vargas v Lee, 170 A.D.3d at 1077). While the Hospital Defendants argue that any claims revolving around recordkeeping are subject to dismissal pursuant to Executive Order 202.10, there is no indication that the plaintiff is requesting the audit trail to establish a claim for insufficient recordkeeping against the defendants. Furthermore, while the defendants may very well be immune from any recordkeeping claims, Executive Order 202.10 does not eliminate the defendants obligations to comply with the standard disclosure obligations set forth in CPLR 3101(a).
Additionally, in order to balance the plaintiffs' need for discovery against any potential burden to be borne by the defendant Hospital, the Court has limited the time frame for the production of an audit trail to the time period commencing when the decedent was transferred to the SDU on March 29, 2020, at approximately 4:30 AM, to the time of his death pronouncement on March 30, 2020, at 8:44 AM, i.e., a period of approximately 28 hours total. (See Vargas v Lee, 170 A.D.3d at 1076 ["Under discovery statutes and case law, competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party"]).
Additionally, while the Hospital Defendants argue that the plaintiffs already have all of the information concerning deletions or modifications in the EMR based on the medical records already produced, the defendants have failed to refute the showing that the audit trail contains certain other information that is not apparent on the face of the medical records, including if an individual accessed and viewed a record without modifying same, which would be relevant to the issue of who knew what information and when.
Based on the foregoing, the plaintiffs motion [Seq. 002] will be GRANTED, to the extent that the defendant Hospital will be compelled to produce the audit trail for the time period commencing when the decedent was admitted to the SDU on March 29, 2020, at approximately 4:30 AM, through the time of his death pronouncement on March 30, 2020, at 8:44 AM.
As to the Hospital Defendants' cross-motion for a Protective Order pursuant to CPLR 3103 denying the disclosure of the audit trail [Seq. 003], the Hospital Defendants' cross-motion is DENIED, in light of the Court granting the plaintiffs' motion to compel the production of the audit trail.
Accordingly, it is hereby
ORDERED, that the plaintiffs' motion to compel St. Joseph Hospital to provide a copy of the audit trail for the electronic medical record of the decedent, JOHN M. ARNOTT [Seq. 002], is GRANTED, to the extent that defendant St. Joseph Hospital is hereby ordered to provide the plaintiffs with a copy of the audit trail for the decedent's EMR, limited to the time period commencing when the decedent was admitted to the Step Down Unit on March 29, 2020, at approximately 4:30 AM, through the time of his death pronouncement on March 30, 2020, at 8:44 AM; and it is further, ORDERED, that St. Joseph Hospital is hereby directed to provide the aforementioned copy of the audit trail no later than forty-five [45] days after being served with a copy of this Decision and Order together with notice of its entry; and it is further, ORDERED, that the cross-motion filed by the Hospital Defendants for a Protective Order pursuant to CPLR 3103 is DENIED; and it is further, ORDERED, that all other requests for relief not specifically addressed herein shall be deemed DENIED.
This constitutes the Decision and Order of the Court.