Akron Legal News

Hospital Records Case Causes Uproar

RICHARD WEINER
Legal News Reporter

Published: August 22, 2014

A medical malpractice case against Aultman Hospital has stirred the waters of the statewide trial lawyers associations, leading four local chapters of the trial lawyer’s association to write Ohio Supreme Court amicus briefs on the issue of jurisdiction—an action that, while not unprecedented, is, “rare.” So said Akron attorney Mark Willis, principal of Willis & Willis Co., L.P.A., and past president of the Summit County Association for Justice.

The case is Griffith v. Aultman Hospital, 2014-Ohio-1218. The trial court had dismissed the case in favor of the defendant hospital on a motion for summary judgment, and the appellate court upheld the decision. The plaintiff then requested the Ohio Supreme Court hear the case, and that motion is pending.

Counsel for the defendant/appellee, Richard S. Milligan of the Canton firm Milligan Pusateri Co., LPA, said that he would not comment on a case that was in litigation.

Counsel for the plaintiff/appellant are Lee E. Plakas and Megan Frantz Oldham of the Canton firm Tzangas Plakas Mannos LTD., were willing to speak about the case.

“This is the first time in my 38 years of practice that all of these local lawyer trial academies around the state have jumped in,” to a request for jurisdiction, said Plakas.

In addition to Summit County’s association, amicus briefs have been filed by like associations from Stark County, joined by Miami Valley, as well as Central Ohio (which includes Columbus) and Dayton.

According to the statement of facts in appellant’s brief, Howard E. Griffith was a patient at Aultman Hospital in Canton in May 2012, receiving successful surgery to remove a portion of one lung. On May 6, he was found in his room by two x-ray technicians. Griffith’s central line and chest tube were disconnected, his gown was ripped, and he was unresponsive. After a code blue, he was revived, but suffered severe brain damage, and died shortly thereafter. Records indicated that his cardiac monitor had been disconnected for 40 or more minutes (depending on the report) before the technicians accidentally stumbled on him, and that alarms had been sounding that entire time.

His daughter, Gene’a, as well as her counsel during discovery at the trial phase, attempted to obtain Griffith’s medical records from the hospital at least four times before the suit was filed—particularly some of his cardiac monitor records. Those EKG records (rhythm strips) had been taken away from the scene and later stored in the risk management department of the hospital, separate from the rest of his medical records.

“During discovery,” said Oldham, “Aultman admitted that the entire medical record had not been produced, and produced what it claimed to be the entire medical record. Also in discovery, Aultman produced some of Mr. Griffith’s monitoring strips which it stated were not medical records but responsive to Plaintiff’s discovery requests.

“We argued,” she continued, “that we should be permitted to find out what other records were not stored in the medical records department, but contained medical information regarding Mr. Griffith. At such point, the trial court and Fifth District disagreed and held that we were only entitled to the records in the medical records department.”

The defendant had argued in its motion for summary judgment to not allow those EKG records into evidence, because the records that were kept in the risk management department did not fit the definition of “medical record”, as described in Ohio Revised Code Section 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.”

Instead, both the trial court and the appellate court found that, since the records were labeled as and stored in the department called “risk management,” rather than in the department “medical records,” that the EKG rhythm strips did not constitute a “medical record,” and were therefore not discoverable.

The decision of the appellate court was 2-1. The majority opinion was written by Judge Craig R. Baldwin, who was joined in the opinion by Judge John W. Wise. A dissent was filed by Judge Patricia A. Delaney.

The majority on the appellate level held that the statutory language defining “medical record” was a very narrow one, that did not anticipate use as a general discovery tool.

To Oldham, the majority opinion, and its potential ramifications beyond this case, strikes a blow to the rights of patients to obtain their own medical records. “We couldn’t understand how Aultman could make this argument with a straight face,” she said.

In fact, said Willis, “on Aultman’s website, in the section for requesting medical records, you can check off a request for your EKG.”

“It says ‘medical record’ on the top of each (EKG rhythm strips),’” said Oldham, stating that it makes no sense for a court to, “determine that these are not medical records, dictated by where they are stored in the hospital.”

“When is a medical record not a medical record?” Plakas asked. “When the medical provider decides?”

That issue attracted the attention of the plaintiff trial bar associations, Willis said. “The associations are all pretty connected,” he said. “When this decision came out, and got disseminated, people saw that the decision was a problem, and that it could create more problems down the road.”

Willis himself can only remember one other time that this number of trial attorney associations banded together over a request for jurisdiction.

The decision, said Willis, “seems so clear, so easy for the (5th District court). How do they fumble this?”

It is, he said, “just a bad decision. Something is out of whack. The court just got it wrong.”

This is all coupled with the fact that many of the medical records of patients at the hospital are regularly deleted; this included, apparently, all of the plaintiff’s EKG’s that were not stored in risk management.

The Delaney dissent also followed this reasoning, and was quoted in the plaintiff’s brief: “I am concerned that the majority’s opinion could lead to the concealment, even though unintended, of medical records if a health care provider can self-define the statutory definition of ‘maintain’ to only include those records it determines to send to its medical records department.”

Additionally, a second case concerning the same facts and involving the same parties is now in litigation on issues of spoliation, Oldham said. Spoliation has been defined as, “the intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding.” That case also includes claims for negligence and wrongful death.

Willis is particularly concerned with the larger impact of this case on other requests for medical records across the state.

Willis, Oldham and Plakas all acknowledged the larger potential impact on electronically-stored information (ESI) under these and similar facts, which is not necessarily stored on-site, as, per this decision, never meeting the appellate court’s definition of a medical record.

But to this current case, Plakas has a simple view. “If you stop 100 people on the street, and ask them if they own their own medical records, and if they are entitled to those records, 100 of them will say ‘yes.’ And ‘yes’,” he said.

All parties now await the jurisdiction determination of the Ohio Supreme Court.

http://akronlegalnews.com/editorial/10932

 

Jurisdictional Brief

Gene'a Griffith, Executrix for the Estate of Howard E. Griffith, Deceased v.s. Aultman Hospital (PDF)

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