On March 23, 2016, the Supreme Court of Ohio handed down a merit decision in Griffith v. Aultman Hosp, 2016-Ohio-1138. In a 5-2 opinion written by Justice Kennedy, the court held that a patient’s medical record is not limited to data in the medical-records department, but rather includes all data the health care provider decides to keep or preserve, regardless of the location.  Chief Justice O’Connor concurred in judgment only.  Justices O’Donnell and Lanzinger each dissented separately.  The case was argued September 2, 2015.

Case Background

On May 2, 2012, Howard Griffith was admitted to Aultman Hospital (“Hospital”) for surgery. After being transferred out of the ICU to a step-down unit, Griffith developed atrial fibrillation and was placed on continuous cardiac monitoring. When a nurse checked on him around 4 a.m. on May 6, he appeared to be fine, but about forty-five minutes later, a technician found Griffith in bed with his gown ripped off, the cardiac monitor no longer attached, the central line on the floor, and the chest tube disconnected. He was unresponsive, and was moved back to the ICU, where he died on May 8.

From July to December of 2012, Griffith’s daughter Gene’a, made a series of in-person and written requests for her father’s complete medical record. Each time the Hospital produced what existed in the medical records department.

After reviewing the documents she had received, Gene’a did not believe she had received the complete medical record, so she filed an action pursuant to R.C. 3701.74 and 2317.48 to compel the production of her father’s complete medical record. The complaint alleged that the Hospital failed to produce any monitoring strips or nursing records from Griffith’s hospital stay. Gene’a served the Hospital with discovery requests as part of this lawsuit.

Thereafter a cat-and-mouse game ensued over Griffith’s medical records, and the cardiac monitoring strips in particular. If you enjoy this kind of thing, read ¶8-14 of the opinion. In short, the Hospital did not produce the strips when Gene’a originally requested her father’s complete medical record. It was the Hospital’s position throughout that a patient’s medical record consists only of the information maintained in the medical records department. The Hospital produced all of that to Gene’a, and on that basis filed for summary judgment, which the trial court granted.

While the Hospital did produce the cardiac monitoring strips in discovery, it steadfastly maintained it had no obligation to do so, since they were not medical records. It characterized the cardiac monitoring data as “responsive documents from the visit that are not part of the medical record.” Ultimately, it was learned through a second deposition of the Hospital’s Director of Medical Records that the May 6 cardiac strips were printed from Griffith’s monitor by a nurse, after Griffith’s death, at the direction of the Hospital’s Risk Management Department.

In a split decision, 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, as the term is statutorily defined, and was entitled to summary judgment.

Read the oral argument preview in this case here, and the analysis 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.)

R.C. 2317.48 (setting forth an action for discovery)

Merit Decision

Executive Summary

This case turns on what constitutes a medical record, as that term is used in R.C. 3701.74(A)(8). The majority holds that “medical record” does not include all data generated on a patient, but only that data the healthcare provider decides to keep or preserve in the process of treatment.  But “medical record” does not consist only of information maintained in the medical records department, which was the Hospital’s position, throughout. The key holding here is that the physical location of the record is not determinative of whether data qualifies as a medical record.

The Definition of Medical Record

Here’s what the statute says:

“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.”

The key, says the majority, is the meaning of the word “maintain.”

The Hospital argued that “maintain” connotes both discretion and a level of management that “brings the data into a discrete set of records.” So the medical record consists of the information the Hospital (or other healthcare provider) decides to keep in a particular discrete location for the care of the patient.

Gene’a Griffith argued that the statute does not authorize the Hospital to limit the medical records only to those records it sends to the medical records department.

“Maintain” is not defined in the statute, so the court gives it its ordinary meaning, which, according to Black’s Law Dictionary is “to continue in possession of.” So the decision to keep the data, but not the physical location, controls. Nothing in the statute says that data about a patient must be kept in a certain place. As good non-activist judges, the court refuses to add words to a statute that aren’t there. For comparison, it cites an Arkansas statute that defines medical records as “health care records…maintained by the medical records department of a ….medical facility.”

The Summary Judgment Ruling Below

Since the Hospital sought summary judgment, it had the burden of showing there was no genuine issue of material fact on whether it had produced Griffith’s complete medical record.

The Hospital argued it had produced a certified copy of Griffith’s record as it existed in the medical-records department. The cardiac monitoring strips, which were printed after discharge (it is unclear whether this means after Griffith’s transfer back to the ICU or after his death) at the direction of the risk management department were not medical records because they weren’t kept in the medical records department.  That didn’t fly with the Supreme Court majority.

The head of the medical records department testified in her deposition that data on the cardiac monitor is deleted 24 hours after discharge unless it is saved at the direction of a physician.  So if a physician ordered those cardiac strip saved, but kept somewhere other than the medical records department, according to Justice Kennedy they would fall under the definition of “medical record,” and should have been produced.

The Punt

But at the end comes a punt-the majority determined that since the proceedings below only focused on those records in the medical-records department, it couldn’t tell if the Hospital had produced Griffith’s complete medical record or not.  The case was remanded to make that determination, using the new definition of medical record.

Oh, And One Last Thing

As one last holding in the case, the court ruled that under the plain language of R.C. 3701.74, a patient or the patient’s representative does not need any reason for seeking his or her medical record. The Hospital didn’t argue otherwise, but the Fifth District majority opinion included a line that the purpose of the statute was to enable a patient, “for example” to get a second opinion or get another doctor, and not as a broad discovery device. Both Justices O’Donnell and Lanzinger repeated the fact that the statute was not a broad discovery device, implying the plaintiff had used it as such, and Justice Kennedy clearly wanted to disavow that view.

Justice O’Donnell’s Dissent

As he does in his dissents, Justice O’Donnell completely restates the background and procedural posture as he sees it. I’m not sure why he does this, but he does.

O’Donnell’s position is that records generated and maintained by a hospital’s risk management department for risk management purposes following the death of a patient are not medical records as the term is defined in R.C. 3701.74 (A)(8) because they are not “used in the process of a patient’s health care treatment.” So, he would find that the Hospital did produce Griffith’s complete medical record in response to the request for production of documents, and therefore, would affirm the grant of summary judgment by the trial court.

Summary Judgment Was Correct

O’Donnell buys the argument that the Hospital did produce the complete medical record. Later, in response to a discovery request, it also produced the monitoring strips from the early morning hours of May 6 as “responsive documents from the visit that are not part of the medical record.” To him, the trial court was correct in finding that the Hospital had produced the complete medical record, and the court of appeals majority was correct in affirming that ruling.

O’Donnell’s Interpretation of R.C. 3701.74(A)(8)

O’Donnell reads the statute as requiring a health care provider to produce “only those records it has generated and maintained in the process of the patient’s health care treatment.” So, just because other medical data exists doesn’t mean it must automatically be produced as part of a medical record.

The legislature could have required health care providers to maintain and produce all patient data generated for any purpose, but did not—only those records generated and maintained in the process of the patient’s health care treatment have to be produced. In this case, the cardiac strips at issue were generated and maintained after Griffith had been discharged from the Hospital and had died. So those monitoring strips could not have been generated and maintained in treating Griffith.

“The department’s purpose for maintaining this data is not immediately apparent from this record, but it is manifest that it was not in furtherance of providing health care treatment. It is also apparent that a health care provider did not generate or maintain this data in the process of the patient’s treatment,” O’Donnell wrote.

Justice Lanzinger’s Dissent

Justice Lanzinger would dismiss the appeal on the grounds that there is nothing to decide. Gene’a Griffith sought medical records for a wrongful death claim that has been settled; there is no longer any controversy between the parties, and she is mystified over what the trial court is supposed to do on remand.

While Lanzinger agrees with the majority that R.C. 3701.74(A)(8) does not require data to be stored in a particular place to qualify as a medical record, she does not think the appeals court majority held that. She thinks the appeals court “simply determined that the trial court had not erred in granting summary judgment on the facts presented, namely that ‘the medical record consists of what was maintained by the medical records department and information that the provider decides not to maintain is not part of the medical record.’”

Lanzinger seems to be the justice who most bought the position of the Hospital and its amici. She clearly thinks healthcare providers have discretion under the statute to decide what to retain and what not to. And she clearly thinks they do so in good faith. “In the highly regulated area of health care, appellant’s concerns over the routine “sanitization” of medical records are overblown,” Lanzinger wrote.

Case Syllabus

None

Concluding Observations

After argument, I wrote,

“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… 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.”

It’s been a long time since I tried medical malpractice cases, but I’m afraid I don’t share Justice Lanzinger’s views that concerns over the sanitization of medical records are overblown. In this case, how on earth could cardiac monitoring strips that were generated during a period of time when Griffith was found in bed with his gown ripped off, the cardiac monitor no longer attached, the central line on the floor, and the chest tube disconnected, and unresponsive, when he had been fine shortly before that not be a highly relevant part of his medical record? The Risk Management Department certainly knew those strips were significant. And frankly, in any ensuing medical malpractice case, if those records weren’t generated and retained, that would look mighty suspicious and would undoubtedly go against the Hospital.  So I think the core holding in this case is a good one- the location of the records shouldn’t determine what a patient gets upon request. And perhaps now, in discovery, the prudent lawyer will ask for all patient data, whether or not maintained in the medical records department, and perhaps ask as well for the identification of data that wasn’t printed out, who made that decision, and why.

Also, a kudo to Justice Kennedy for the observation that a patient need not give a reason for requesting medical records. That should be obvious, but in my time I have met some custodians who were huffy on that point.