This post is Part 9 of a series based on Nursine Jackson’s article, “What about that Device Data?”.
The goal of this 9-part series is to stimulate the plaintiff’s teams’ thinking about additional sources of eDiscovery. If the plaintiff’s team is unaware that device data exists and does not specifically ask for it, they are unlikely to receive it. If the judge and defense team are not properly educated about the patient’s right to access this data, (data that is used, in whole or in part, to provide patient care), this eDiscovery will not be accessible to the plaintiff. By requesting eDiscovery with sound explanations as to why the plaintiff should have access to this information, the more likely the request will be perceived as appropriate eDiscovery.
Evidence about devices utilized in patient care that store data will generally not appear in medical records provided. The plaintiff’s team has the burden to find evidence of the use of these devices, then of proving that their requests for device data are reasonable and not fishing expeditions.
Electronic discovery is a developing area of law, and to date, the defense team has been hard at work in blocking eDiscovery. However, the law is on the side of the plaintiff. HIPAA, HITECH, the Cure’s Act, and the ASTM e2147 audit trail standard are invaluable in helping the plaintiff gain access to his data, but that is the subject for another day. More than ever before, in order to obtain useful eDiscovery, the plaintiff’s team must know their case issues early in case development, then investigate to determine whether there might be device data that could be useful in illustrating the elements of the case.
As illustrated in this series, there are two sentiments that plaintiff attorneys should practice in order to obtain useful eDiscovery:
Know the case issues early in case development
Investigate to determine whether there might be device data that could be useful in illustrating the elements of the case
About the Author
Nursine Jackson MSN, RN is a Cardiovascular Clinical Specialist and Legal Nurse Consultant who has spent her career advocating for patients. Challenges in acquiring trustworthy electronic medical records in legal cases first captured her attention in a 2007 case. Her subsequent work culminated in chairing the committee to update the international standard for audit trails, ASTM e2147, which replaced the 2013 standard in May 2018. Currently, much of Nursine’s professional time is focused on assisting plaintiffs’ advocates in identifying meritorious cases, then in obtaining eDiscovery for plaintiffs who have been injured by medical errors.
The case examples provided are from actual cases that have been de-identified and modified to fit the format of this article. I would like to acknowledge EMR Discovery for their assistance in collecting case examples and de-identifying these documents.
We hope you enjoyed the series. To download Nursine Jackson’s complete article, “What about the Device Data?”, click here.
For more on audit trails and logs, see Jennifer Keel, Follow the Audit Trail, Trial 28 (May 2014); Jennifer L. Keel & Matthew J. Laird, Blazing a Trail, Trial 22 (May 2017); Jonathan H. Lomurro, Jennifer L. Keel, & Nursine Jackson, Cures for Barriers to Electronic Health Records, Trial 44 (April 2019); Dustin B. Herman. Dig Deep for the Data, Trial (December 2019).
 Publication of the Final Rule of the Cures Act to the Federatl Register, 5/1/2020. Retrieved from: https://www.federalregister.gov/documents/2020/05/01/2020-07419/21st-century-cures-act-interoperability-information-blocking-and-the-onc-health-it-certification and Lomurro, J., Keel, J., Jackson, N. (April 2019) Cures for barriers to electronic health records. Trial.