The recent discovery trend in medical malpractice litigation is to not only request a copy of the patient’s medical record, but to also request the defendant’s electronic medical record (EMR) “audit trail,” which can show a true history of the chart entries including the identity of persons who have reviewed its information. In some instances, the EMR’s audit trail is as highly scrutinized as the care rendered to the patient. Before producing the audit trail, several issues should be answered.

What Is the Relevance of the Information in the Audit Trail?

In the few cases reported, the issue of “relevance” is the first logical step in determining whether the audit trail should be produced. The two successful arguments for audit trail production are (1) to prove an alteration when the information within the patient’s record is suspect, as in Bentley v. Highlands Hospital, 2016 U.S. Dist. LEXIS 23539 (U.S.D.C., E. Dist. KY) (Feb. 23, 2016) and Vargas v. Youssef, 2015 N.Y. Misc. LEXIS 2176, 2015 NY Slip Op. 31048 (U) (Sup. Ct. Kings Cty., June 10, 2015), and to establish the receipt of medical information  by others. Gilbert v. Highland Hospital, 2016 N.Y. Misc. LEXIS 1672; 2016 NY Slip Op 26147 (March 24, 2016). General requests for the audit trail without more purposeful information may be objected to unless there is a specific reason for the inquiry.

Can a Privilege Apply to Portions of the Audit Trail?