29 Trial Lawyer • Summer 2023 damages. Defendants often object to production of complete audit trail/logs based upon a claim of peer review privilege or work product. There is authority that these are not valid objections. Audit trails and logs are not privileged documents per the federally adopted standard for Audit and Disclosure Logs for Use in Health Information Systems. Section 4.3 of ASTM E2147-18, “Significance and Use” expressly states: A patient has a right to know who has accessed their patient information and w hat occurred during such access. Access by any means (viewing or any other action) regarding the patient record and/or audit log or the data contained therein by attorneys, risk management, or similar individuals or entities are not privileged actions and must also be fully transparent and disclosed. See also, Moan v. Mass General Hospital, 2016 WL 1294944 (Mass) (audit trail information showing actions by the peer review team and risk management were discoverable.) Changing the record In Jean’s case, the audit logs revealed that the orthopedic surgeon dramatically revised his consult note after her death. The audit log showed that he did not seriously consider necrotizing fasciitis in his differential diagnosis. It also showed he did not review the CT scan or the hospitalist’s progress notes and orders until after Jean’s death. In the original note created on the day of the exam, he made no mention of the key symptoms of necrotizing fasciitis: swelling, redness, warmth, severe pain, crepitus (crackling), induration, lack of purulent drainage, trapped air under the skin on CT. He made no plan for serial examinations of her arm. His original consult note made no reference to reviewing the progress note of the hospitalist or reviewing the CT scan. Almost all of the key symptoms, findings, and action plans he documented in the final note were added after he found out she died! It appeared to us that after he learned she died, he did some research on necrotizing fasciitis and edited his note to make it look like he had considered necrotizing fasciitis all along. When we took his deposition, we knew he had edited his consult note after Jean’s death. Oddly, even though we had already deposed the IT person, the surgeon was not prepared and did not seem to know about the audit logs. When we asked him if he relied on the CT scan in his evaluation of Jean, he lied: Q. Did you see the CT scan before going and seeing Mrs. Jean? A. I saw it at or around the time or perhaps before. I don't remember when exactly, but it was part of my evaluation. Q. When do the CT scans become available? A. I don't know when it became available, but it was available to me. Q. Did you actually see the CT scan or did you read the report? In Jean’s case, the audit logs revealed that the orthopedic surgeon dramatically revised his consult note after her death. The log showed he went back into the record and made it appear he had considered symptoms such as purulent drainage. A. Both. Q. When did you read the report? A. I don't remember, but it was part of my evaluation. In Jean’s case, the audit logs and the surgeon’s prevarications under oath were game changers and proved to be critical to the successful resolution of the case. Your defendant medical providers might push back on your requests for audit trails. But they have to provide this valuable information. After all, in preparing the best possible case for your client, you can't use what you don't know. And you don't know what you don't know. With the audit trail, you will know. Marilyn Heiken specializes in medical malpractice and other personal injury cases. She contributes to the OTLA Guardians of Civil Justice at the Sustaining Member level. She is a shareholder with Johnson Johnson Lucas & Middleton located at 975 Oak St., Ste. 1050, Eugene, OR 97401. She can be reached at 541484-2434 or mheiken@justicelawyers.com.
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