Joshua Cohen prevailed before the New York Appellate Division on a novel issue involving a plaintiff’s demand for an inspection of the plaintiff’s electronic medical record (EMR) with their expert to review and extract metadata and an audit trail.  Plaintiff argued the physician’s record may have been altered after the care at issue and sought to examine the EMR and its audit trails to determine if data existed to show improper modification.  We strongly contended there was no such revision as reflected in prior disclosures and no showing of a need.  We further demonstrated there is no HIPAA regulation requiring an inspection and there was a risk of a privacy breach with an unnecessary review. 

In the first New York appellate decision addressing the issue of inspection of an EMR system in litigation, the Appellate Division denied plaintiff’s request to examine the EMR with their expert.  That Court properly rejected plaintiff’s demand holding that the relevant information was previously provided and intrusion of the EMR was not warranted.

Unfettered and costly discovery of an EMR system is a vexing problem facing all health systems in litigation.  Here, the Court properly limited the disclosure to avoid an excursion into the EMR.   Our clients understand every dollar and resource spent on needless discovery is taken from patient care.  We are pleased the Appellate Division recognized reasonable limitations.