An audit trail of an electronic medical health record “shows the sequence of events related to the use of a patient’s electronic medical records; i.e., who accessed the records, when and where the records were accessed, and changes made to the records” (Vargas v. Lee, 2019 N.Y. App. Div. LEXIS 2071, 2019 NY Slip Op 02142 (2d Dep’t March 20, 2019)) and hospitals are required to maintain them under federal and state law (see 45 CFR 164.312[b], 10 NYCRR 405.10[c][4][v]). Audit trails can thus be the “silver bullet” for a plaintiff or a defendant depending on the facts of the case.

Just as the 2018 decision by the New York State Court of Appeals in Forman v. Henkin, 30 N.Y.3d 656 (2018), made clear that the rationale for allowing “liberal discovery” of social media “encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise,” recently the Second Department in Vargas held that such policy equally applies to the production of an audit trail of a patient’s electronic medical health record. Courts are requiring the production of audit trails when they are relevant to a discrete time period, the “timing” of medical treatment and/or gaps or inconsistencies revealed by medical records. Critically, in Vargas, recognizing the evidentiary necessity to properly authenticate medical records at trial, the Second Department also noted that disclosure of an audit trail may be needed to assist in the preparation for trial by enabling “counsel to ascertain whether the patient records that were eventually provided to them were complete and unaltered.” Counsel for both plaintiffs and defendants need to heed the guidance provided in Vargas.

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