The Appellate Division of the Superior Court of New Jersey has released an opinion concerning a request by a plaintiff in a wrongful death lawsuit to have an expert conduct an onsite inspection of the decedent’s electronic medical record (EMR); examine the metadata associated with the EMR, and see the audit trail of the EMR. The EMR was stored on the hospital defendant’s EPIC system.
New Jersey’s rules of civil procedure are similar but not identical to the Tennessee rules.
The appellate court affirmed the trial judge’s ruling permitting the request. Plaintiff’s expert was permitted to see decedent’s EMR on a screen controlled by defendants’ employees and to see the metadata behind the decedent’s EMR. Plaintiff will be permitted to ask that certain metadata she wants copied and produced. The appellate court gave this guidance for the inspection:
First and foremost, plaintiff’s expert stated that she could conduct the inspection in “a few hours.” We therefore limit the inspection to four hours. Plaintiff’s expert may conduct the inspection of decedent’s EMR, on site, with defendants’ personnel in control of the EPIC system and the mouse. Plaintiff’s counsel may be present and may request specific metadata be copied and produced in “reasonably usable form.” R. 4:18-1(a). Defense counsel also may be present to lodge any objections to particular metadata that appears on
the screen or is copied for production, but any objections shall be preserved and considered by the court at a later time. The process shall not be recorded, and plaintiff’s expert and counsel shall comply with any reasonable COVID-19 protocols defendants may require.
The opinion in Estate of Richard W. Lasiw v. Pereira, DOCKET NO. A-1231-21 (April 18, 2023) has a nice summary of the law on this issue from the perspective of the plaintiff and the defendant.