Thursday, December 17, 2020

Discovery of Different Versions of Electronic Medical Records Allowed Where Plaintiff Alleges Doctor Altered the Records

In the case of DelGuercio v. Tio, No. 19-CV-3604 (C.P. Lacka. Co. Nov. 16, 2020 Nealon, J.), the court addressed a motion filed by the Plaintiff in a medical malpractice case seeking to compel the production of the “templates and macros” used by the Defendant doctor in creating the electronic medical record (“EMR”) at issue in this case.

According to the Opinion, this case arose out of allegations of an incorrect diagnosis following emergency room treatment that allegedly resulted in the Plaintiff being released and subsequently developing a stroke.

The Plaintiff alleged that, after the Defendant doctor had treated the Plaintiff in the emergency room and later learned what happened to the Plaintiff, the doctor allegedly made several additions and edits to the patient’s electronic medical record regarding his care of the Plaintiff during the relevant time.

The Plaintiff alleged that discovery revealed four (4) different versions of the doctor’s emergency room note that were captured by the electronic medical record system of the hospital.

During his discovery deposition, the Defendant doctor testified that he created his own “macros” that he would use when making entries into a patient’s EMR. The doctor described his macro as a template within a template. The doctor noted that he had chosen a couple of phrases within a drop-down menu and had saved them as a macro which he would then tailor to the specifics of each patient thereafter. The Plaintiff asserted that the Defendant doctor used these macros as an excuse at his deposition to explain several of his additions and deletions from the Plaintiff’s medical records.

In his decision, Judge Nealon noted that the Pennsylvania Rules of Civil Procedure pertaining to discovery are designed to advance the truth-seeking process of a jury trial and to prevent any unfair surprise at trial.

The court reiterated the rule under Pa. R.C.P. 4003.1 that discovery is to be liberally allowed with respect to any matter that is relevant and not privileged. The court emphasized that the relevancy standard applicable to discovery is necessarily broader than the standards used at trial for the admission of evidence.

After also reviewing the more specific pertinent rule of Pa. R.C.P. 4009.1 regarding the discovery of electronically stored information (“ESI”), the court noted that the discovery at issue in this matter would be discoverable as relevant to the questions presented. The court granted the Plaintiff’s Motion to Compel in part and denied it in part based upon different aspects of the discovery at issue.

Anyone wishing to review a copy of this decision may click this LINK.

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