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Question: How can you make sure the defendant has not altered the electronic medical records?


First, serve a notice for discovery and inspection of the defendant’s “audit trail”.

The audit trail will show the history of all changes to the medical records. The audit trail will show all of the additions, changes and deletions to the patient’s electronic medical records and the date and time that the medical record was changed.  For example, the audit trail will show that Dr. Jones added notations to your client’s medical record on December 3rd (five weeks after the patient was discharged from the hospital).

If emails are part of the computer system (as opposed to an external system for emails like gmail), there will be an audit trail for emails.  Just like the electronic medical records, there will be an audit trail for the emails.  Within the metadata, there will be information showing the date the email was created, the history of changes to the email and when those changes were made.

Do you need a computer forensic examination to get the audit trail?  Not always.  You can get a paper copy of the audit trail that will display the date of the additions, changes and deletions to the patient’s electronic medical records and emails.  If, on the other hand, you want to get the metadata, you will need a forensic computer examination.

How do you make sense of the audit trail?  You should serve a notice for the deposition of the “IT guy”, or the go-to guy who knows everything about the defendant’s computer systems.  You should ask the IT expert whether emails are external to the electronic medical record system and explain him to describe the audit trail.

Don’t forget to serve a preservation letter for the electronically stored information as soon as you accept the case.  The preservation letter that I serve begins:

As critical evidence in this case exists in the form of Electronically Stored Information (“ESI”) contained in the computer systems of Albany Medical Center Hospital, this is a notice and demand that such evidence must be immediately preserved and retained by Albany Medical Center Hospital until further written notice from the undersigned. This request is essential, as a paper printout of text contained in a computer file does not completely reflect all information contained within the electronic file.

Additionally, the continued operation of the computer systems identified herein will likely result in the destruction of relevant ESI due to the fact that electronic evidence can be easily altered, deleted or otherwise modified. The failure to preserve and retain the ESI outlined in this notice constitutes spoliation of evidence and will subject Albany Medical Center Hospital to legal claims for damages and /or evidentiary and monetary sanctions.

Unless and until all potentially relevant ESI has been preserved, Albany Medical Center Hospital must refrain from operating (or removing or altering fixed or external drives and media attached thereto) standalone personal computers, network stations, notebook and/or laptop computers operated by __________.

If you want a complete copy of the preservation letter that I use for electronic medical records (or any kind of electronic records), send me an email at jfisher@ultimateinjurylaw.com and I will be happy to email the complete letter to you.

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