Tuesday, February 05, 2013

More on the lengths a hospital will go through to protect their EHR from discovery

At "The lengths a hospital will go to in order to protect their EHR - Motion for Reconsideration of Denial of Motion for Reconsideration of Denial of Objections" I wrote about obstruction of litigation by the defense regarding a case where an EHR contributed to patient injury and death.

The major basis for the new "Motion for Reconsideration" (a request for the court to reconsider its prior denial of an earlier Motion for Reconsideration of an initial court decision to dismiss defense objections to the Complaint) is this.  From the actual filing (emphases mine):

(click to enlarge)

Here is likely why the court "never addressed the issue":  they don't have time to address frivolous claims.  Neither does the Superior court that also declined to hear this argument.  (It's actually the defense who never addressed the following in all their filings):

From the official publication of the Civil Procedure Rules Committee in the state, effective a decade ago:

That's pretty clear.  One certificate for non-defendants for whom the defendant is vicariously liable.  Further, a decade ago recommendation 200 also was approved and added to the note; the medical professional providing the justifying statement doesn't even need to name the 'other professionals who deviated.'

The mandated Certificate was timely filed, as was a separate Certificate of Merit for direct corporate liability in the malpractice suit.

Further -  from the actual mandated Certificate of Merit document, direct from the State code:

I don't think the Courts expect parties to edit their documents to accommodate their own whims.

The only option for identifying those sued is “Name of Defendant.”  No fields are present specifying “Name(s) of Defendant’s agent, employee (etc.) for whom Defendant is being held vicariously liable”, or similar, nor is some other multi-labeled Certificate of Merit for such purposes in existence.

This is some rather inventive lawyering and misuse of court process, either to needlessly prolong the case, or to harass the plaintiff.  The judges will likely not be amused.

On the other hand, the delays have allowed me to be able to see and review metadata (e.g., audit trails and other "data about data") produced from the very same EHR system that was in use at this hospital, via my legal support work in another case in the state.  It took time for that production to occur.  This will make it much harder for the hospital to pull the wool over my eyes regarding metadata discovery.

That's one reason why I'd been patient with all this.

My patience is now long expired.

My mother, the original plaintiff, is unavailable for comment.

-- SS

1 comment:

Anonymous said...

They must have a lot to hide and protect. They are wasting public funds with the litany of obstructive tactics.