Update: On March 23, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

“Your not so subtle way of addressing this would be they (the Hospital) are hiding the ball?” Chief Justice O’Connor, to Plaintiff’s counsel.

On September 2, 2015, the Supreme Court of Ohio heard oral argument in the case of Gene’a Griffith, Executrix for the Estate of Howard E. Griffith, Deceased v. Aultman Hospital, 2014-1055.  At issue in this case is whether records not maintained in a medical records department are part of a patient’s discoverable medical record.

Case Background

Gene’a Griffith’s father Howard died at Aultman Hospital two days after he was found unconscious on the floor of the step down unit to which he had been transferred, with leads from his cardiac monitor detached from his chest. It was learned later that he had been off the monitoring equipment for forty minutes. A doctor ordered the cardiac monitoring strips from this period to be saved, but the doctor did not print them out. The head of the hospital’s risk management department had these printed out later and kept in the risk management department. The rest of Griffith’s medical record was stored in the Medical Records Department.

Griffith’s family tried several times unsuccessfully to get Howard’s complete medical record, and ultimately filed a medical records lawsuit pursuant to R.C. 3701.74 (C) to compel production of the medical record. After suit was filed, the Hospital’s Director of Medical Records was deposed.  It was her position that if a record is sent to the medical records department, it is a medical record, but if it is not sent to the records department, then it is not a medical record. Therefore, according to her, Howard Griffith’s cardiac monitoring strips were not medical records.

The Hospital took the position that it had given Gene’a all of her father’s medical records, which did not include the cardiac monitoring strips. Gene’a opposed the motion on the ground that she did not believe she had her father’s complete medical record.  The trial court granted summary judgment in favor of the Hospital, finding that it had produced Howard’s complete medical record.

Gene’a Griffith appealed, arguing that the Hospital’s definition of a medical record is inconsistent with R.C. 3701.74(A)(8). In a split decision written by Judge Craig Baldwin, joined by Judge Roger Wise, the Fifth District agreed with the Hospital that medical records consist of what is maintained by the medical records department, and information the provider decides not to maintain is not part of the medical record. Therefore the Hospital did produce Griffith’s entire medical record, and was entitled to summary judgment.  In dissent, Judge Patricia Delaney disagreed with the majority’s interpretation of what should be considered a “medical record.” She believes the majority improperly limited a patient’s ability to access all of the patient’s records, and expressed concern that allowing hospitals to self-define what is a medical record could lead to improper concealment of records by hospitals.

Read the oral argument preview in this case here.

Key Statutes

R.C. 3701.74(A)(8) (“Medical record” means data in any form that pertains to a patient’s medical history, diagnosis, prognosis, or medical condition and that is generated and maintained by a health care provider in the process of the patient’s health care treatment.)

R.C. 3701.74(C) (If a health care provider fails to furnish a medical record as required by section (B) of the statute, a patient may bring a civil action to enforce the patient’s right of access to the record.)

At Oral Argument

Arguing Counsel

Megan J. Frantz Oldham and Lee E. Plakas (in rebuttal), Tzangas Plakas Mannon Ltd, Canton, for Appellant Gene’a Griffith

Richard S. Milligan, Milligan Pusateri Co, LPA, Canton, for Appellee Aultman Hospital

Griffith’s Argument

Patients have a statutory and an inherent, fundamental right to their medical records. In addition, that right is codified at R.C. 3701.74. Medical records don’t lose their significance as a medical record because a hospital unilaterally decides to maintain those records in a department other than the medical records department. Unless the court of appeals is reversed, hospitals will have a green light to hide medical records with impunity and patients will have no way of knowing if they have been provided a complete and accurate copy of their medical records.

Specifically, in this case, a doctor actively made the decision to save the cardiac monitoring information for the period during which Mr. Griffith was found to be disconnected from the monitoring equipment.  The patient is entitled to that information regardless of where it is stored in the hospital.  Regardless of where the medical record is stored, if it falls within the definition in R.C. 3017.74 (A)(8), the patient is entitled to it. In this case, Griffith’s family had to file a separate medical malpractice/wrongful death lawsuit to get this cardiac monitoring information in discovery, although it still does not have all this information.

In this records request case, there was a genuine issue of material fact over whether the patient’s representative received the complete medical record. The medical records custodian certified that the family had all records as they existed in the medical records department, but she had no knowledge of what other departments contain.

Hospital’s Argument

The Hospital is not trying to hide anything in this case. Electronic data from the monitoring equipment in a hospital is routinely recycled and looped over. To print every single piece of data about every patient would be totally impossible.

What a patient is entitled to is the medical record, but somebody must determine what is in that medical record, and that someone is the provider, here the hospital. All hospitals have policies and procedures in place for maintaining what they determine is necessary to be in the medical record. But the medical record consists of the information the provider decides needs to be in the medical record. Other health information about a patient may be discoverable, but not within the statutory definition of a medical record.  The statute does not provide for all data about a patient’s stay. It refers to data generated and maintained by the hospital, and the hospital decides what to maintain. It would be impossible for a hospital to honor a medical records request if it had to retrieve data off back-up tapes and hard drives from all the different monitoring systems in the hospital.

In this case the doctor who looked at the cardiac monitoring strips could have printed out what he had looked at, and had he done so, it would have become part of the medical record, but he chose not to. The data was not preserved. The cardiac monitoring strips were later printed out by risk management and taken to the risk management department. Risk management is not permitted to add additional material into the medical record.  These cardiac monitoring strips  were discoverable, and were discovered; they just were not part of the medical record.

What Was On Their Minds

A lot. This argument ran nearly an hour. So, accordingly, a very long post.

Who is the Decider?

Isn’t it the health care provider that gets to decide what data relates to the medical care of a particular patient, asked Justice French? Who decides what is kept? Doesn’t someone have to decide?

If a hospital decides a piece of paper is not a medical record, then at that point it’s not a medical record, asked Justice O’Neill, noting that seemed “like a rather sweeping law.”  Is the risk management department part of the provider, he asked later?

Data or Medical Record?

What exactly is meant by “the record,” asked Justice French? Is it every piece of data generated from a machine?

Isn’t a cardiac strip a medical record, asked Justice O’Neill?

Is the larger question the definition of what the medical record is here? Or is it the hospital’s position that it is disputing that the data collected by risk management is not a medical record, asked Justice O’Donnell?

What exactly is the dispute here, asked Justice Pfeifer?

Isn’t this a temporal problem too, asked Justice Lanzinger? What do we do for a plaintiff in a situation like this where there is data relating to the treatment of the patient that has not yet been culled by the hospital and then maintained in a special area where the policy says it will go? What is happening until it is actually reduced to the file?

This key exchange occurred between Chief Justice O’Connor and the Hospital’s lawyer:

The Chief:

If you don’t call it a medical record, what do you call it? You would agree it pertains to the treatment of the patient? So when a patient  asks for their medical records, what would they have to ask for in order to be able to be sure that they get that information?

Mr. Milligan:

They would have to make a request for the data. The statute does not provide for that. The statute provides for what is maintained by the hospital.  This is a very practical problem because to be honest it is impossible for a hospital to honor a medical records request if they have to go retrieve data off backup tapes and hard drives from 150 different systems.

This was followed by this exchange with Justice O’Neill:

Justice O’Neill:

So you would agree with the 5^th district that a medical record contains what the hospital says is a medical record.

Mr. Milligan:

Yes, I agree it has to be that way.

What the Statute Requires

Does the statute require every bit of data on everyone, asked Justice French?

If a record is in existence and held by a medical provider, under a records request, is the patient entitled to it, asked Justice O’Donnell?

Is “saved” the same thing as “maintained” asked Justice Lanzinger? And doesn’t “maintained” suggest discretion? Is this statute considered a discovery tool?

What the 5^th district has written is that medical records are what the hospital says are medical records. That is totally in conflict with the statute which says medical records are those that are used in the process of the patient’s health care treatment, observed Justice O’Neill.

Where Records are Stored

The physical room or department that holds the records doesn’t determine what the plaintiff is entitled to, does it, asked Justice O’Donnell? The fact that it is not with a hospital records clerk is immaterial?

Isn’t what matters whether the document was in the process of the patient’s health care treatment, not where it is stored, asked Justice French?

Burdensomeness

How does this court write a rule that doesn’t require that everything to be kept forever, asked Justice O’Donnell?  Since medical records are now kept electronically, if the physical record isn’t there, is the plaintiff going to be entitled to the hard drive? To see what was on there? Justice O’Donnell brought this up a number of times. As he usually does, he asked what the court should write here, without opening the proverbial Pandora’s box.

Can’t the records be electronically saved, asked Chief Justice O’Connor, commenting that she did not see that as a huge burden. (Mr. Milligan strongly disagreed)

What the Plaintiff Has Received

Has the plaintiff received the monitoring strips, asked Justice O’Donnell? Was all of this data that was collected and preserved by risk management given over to plaintiff’s counsel? (Hospital’s answer: yes; there are no more documents and the data is gone because it is continuously recycled. What exists was provided immediately.)

What happened to the cardiac monitoring strips once they were printed out, asked Chief Justice O’Connor?

Has that data that was preserved by risk management been furnished to the patient’s representative, asked Justice Pfeifer? (plaintiff argued she still has not received everything)

This Medical Record

The cardiac monitoring strips that would have documented that Mr. Griffith was not being continuously monitored are not in his medical record today, are they, asked Justice O’Neill. And why not?  Why were the records of where Mr. Griffin’s heart had been monitored for the last hour of his life not in his medical records?

Is the question of what is discoverable different from the question of whether it is part of the patient’s medical record, asked Justice O’Donnell, in a key question of the day, and a distinction the hospital’s lawyer repeatedly tried to make.

What the Plaintiff is Entitled to Receive

If a medical records request is made, are all documents and data to be delivered whether or not they are with the custodian of the records at the institution, asked Justice O’Donnell? Does the court have to decide what is discoverable here? If these cardiac strips had not been preserved by risk management, would the plaintiff still be entitled to them? Or to a hard drive to examine to see if they are there?

If there is a document that pertains to the treatment of a patient, whether it is paper or electronic, and regardless of where it is kept, the plaintiff ‘s position is the plaintiff is entitled to it, asked Chief Justice O’Connor ? (answer: yes) If the data is preserved, and not looped over, and the hospital preserves it for some reason, at the direction of somebody, is it able to be transmitted to the plaintiff for review?

Can’t the plaintiff get the cardiac strips via discovery, asked Justice Lanzinger?

Is there still a dispute of fact as to what was in fact ordered to be maintained, asked Justice French?

What is it the Hospital doesn’t want to furnish, asked Justice Pfeifer?

Spoliation

If the medical records were destroyed after the doctor used them, would the plaintiff have a spoliation claim, asked Chief Justice O’Connor? If a medical record is in existence, at the time its asked for, and no matter where it physically is in the hospital, it is discoverable and needs to be turned over, that’s one thing, she mused, adding that it would be quite another to claim spoliation every time a document was used and then discarded. Slippery slope, she warned.

How it Looks From the Bleachers

To Professor Bettman

There seemed to be far more sympathy among the justices with the patient than with the hospital.  On a continuum, Justice French was most sympathetic to the Hospital’s argument about the burden of having to maintain all the underlying data for all patients; Justice O’Neill the least. But even Justice French may buy the argument that a question of material fact exists on the records turn-over question.

Clearly a majority is not buying the idea that a patient’s medical record depends on where it is located in the hospital.  And while the hospital’s lawyer struggled mightily and often in this very long argument to make the distinction between what is in a medical record (not the cardiac strips in this case) and what is discoverable in a lawsuit (which the cardiac strips would be), the Chief and Justices O’Neill and Pfeifer just didn’t cotton to the idea of the hospital deciding what a person’s medical record is, and the fact that an ordinary citizen wouldn’t have gotten the cardiac strips if that person had requested his or her medical record in this case, without a lawsuit.

To me, the question isn’t so much what Justice O’Donnell asked, which was if the cardiac strips had not been preserved by risk management would the plaintiff still be entitled to them. The question in my mind is if the cardiac strips hadn’t been preserved by risk management, and they weren’t part of the medical record, how would an ordinary citizen even know they existed? What if there was no notation in the chart about it at all? And that is really troublesome in this case, or maybe it is just my old plaintiff’s heart from my days as a medical malpractice lawyer. What if the Griffith family never knew Mr. Griffith was disconnected from the monitoring equipment, and that information wasn’t in his chart because the hospital decided it wasn’t part of the medical record? How would they ever find the trail to find the truth? The idea that something only becomes part of the medical record when the hospital decides to print it out doesn’t sit well with me.  But what exactly the court is going to write here, as Justice O’Donnell asked repeatedly, is far from clear. I don’t think the court is going to accept what the Fifth District wrote, however.

To Student Contributor Austin LiPuma

Griffith’s lawyer starts by asserting that medical records should not be unilaterally determined by a hospital. Throughout Griffith’s argument, the court seemed hesitant to issue a blanket rule that all documents created regarding a particular patient are records. Counsel did a solid job of honing in on what is vital in this case—medical records should not be up to the discretion of a hospital or health care provider to determine. After skirting around a full answer for a moment, plaintiff’s counsel did accuse Aultman of “hiding the ball” and being rewarded for it. Slippery slope scenarios proposed by the Justices plagued most of Griffith’s argument. At one point it was suggested that “mass furor” would erupt in the health care industry if hospitals were forced to provide every single piece of information regarding a patient’s care.

Aultman attempted to paint a picture where the requested EKG strips were not “maintained” by the hospital. However, the justices were quick to attack this proposition. Counsel refused to back down from the argument that hospitals should be permitted to dictate what becomes part of a patient’s medical record. The argument hinged on the impracticability and impossibility of producing every single document relating to a patient’s care. However, as addressed by Chief Justice O’Connor, virtually every hospital uses an electronic system that makes these issues “not much of a burden.”

Extremely vocal bench here. Some awkward exchanges and unexpected banter stretched the argument to almost an hour long. One thing is clear—the Fifth District’s decision, in its current form, will not stand. The much more difficult question is where the line in the sand will be drawn by the court. Based on the court’s general propensity towards medical provider support, I think it will write a very narrow rule that overturns the Fifth District’s decision but shy away from making a blanket rule for requesting patients.