Update: On March 23, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
Read the analysis of the oral argument here.
On September 2, 2015 the Supreme Court of Ohio will hear oral argument in the case of Gene’a Griffith, Executrix for the Estate of Howard E. Griffith, Deceased v. Aultman Hospital, 2014-1055. At issue in this case is whether records not maintained in a medical records department are part of a patient’s discoverable medical record.
Gene’a Griffith sued Aultman Hospital after her father, Howard, was found unresponsive on the floor of the step down unit to which he had been transferred, with leads from his cardiac monitor detached from his chest. He was transferred back to the ICU, where he died two days later. After suit was filed, Griffith requested all of Howard’s medical records from the Hospital. Specifically, Griffith sought EKG monitoring strips from the morning her father was found unresponsive in the step down unit. When the Hospital failed to comply with this request, Griffith filed a motion to compel discovery. The Hospital responded by claiming that it had provided Griffith with Howard’s complete medical record.
In a deposition, the Hospital’s Director of Medical Records testified that she could certify only that Griffith had been provided everything in the Hospital’s Medical Records Department, not all medical information about Howard’s hospital stay. The Hospital defines a patient’s medical record as that which is in the possession of its Medical Records Department; what isn’t there is not a medical record, even if it exists elsewhere in the Hospital. Specifically, she maintained that Howard’s cardiac monitoring strips were not medical records because they were kept by the Risk Management Department, not in the Medical Records Department. She further testified that she was unaware if other records regarding Howard’s care existed in different hospital departments. The Hospital filed a motion for summary judgment, and while the motion was pending, without explanation, produced an additional page of Howard’s medical record. The trial court granted summary judgment in favor of the Hospital, finding that it had produced Howard’s complete medical record.
Griffith appealed, arguing that the Hospital’s definition of a medical record is inconsistent with the law and that the director’s insufficient knowledge regarding the existence of other records precludes summary judgment.
In a split decision written by Judge Craig Baldwin, joined by Judge Roger Wise, the Fifth District agreed with the Hospital that medical records consist of what is maintained by the medical records department. Therefore the Hospital did produce Griffith’s entire medical record, and was entitled to summary judgment. In dissent, Judge Patricia Delaney disagreed with the majority’s interpretation of what should be considered a “medical record.” She believes the majority improperly limited a patient’s ability to access all of the patient’s records, and expressed concern that allowing hospitals to self-define what is a medical record could lead to improper concealment of records by hospitals.
R.C. 3701.74(B) (A patient, a patient’s personal representative, or an authorized person who wishes to examine or obtain a copy of part or all of a medical record shall submit to the health care provider a written request signed by the patient, personal representative, or authorized person dated not more than one year before the date on which it is submitted. The request shall indicate whether the copy is to be sent to the requestor, physician or chiropractor, or held for the requestor at the office of the health care provider. Within a reasonable time after receiving a request that meets the requirements of this division and includes sufficient information to identify the record requested, a health care provider that has the patient’s medical records shall permit the patient to examine the record during regular business hours without charge or, on request, shall provide a copy of the record.)
R.C. 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.)
45 CFR 164.501 (Designated record set means: (1) A group of records maintained by or for a covered entity that is: (i) The medical records and billing records about individuals maintained by or for a covered health care provider.)
45 CFR 164.524 (An individual has a right of access to inspect and obtain a copy of protected health information about the individual in a designated record set, for as long as the protected health information is maintained in the designated record set.)
First, Griffith asserts that patients have a fundamental right to review what is in their medical records, and the plain language of R.C. 3701.74 defines “medical record” as “data in any form that pertains to a patient’s medical history.” The statute contains no qualifiers as to where or how the record is stored. The Fifth District improperly skewed the word “maintain”, which is not defined in the statute, to mean kept within the medical records department in a health care facility. The literal definition and ordinary meaning of “maintain” is to “keep in an existing state; preserve or retain.” The definition manufactured by the appeals court violates the basics of statutory interpretation by adding qualifiers that do not exist in the statute. While hospitals do not have to preserve every piece of data generated during a hospital stay, if a hospital decides to preserve something, it becomes part of the patient’s medical record. In this case Howard’s doctor decided to save his monitoring information, which becomes a part of Howard’s record regardless of where it is stored.
Furthermore, HIPPA guarantees patients the right to access their medical records. Under 45 CFR 164.524, a “designated record set” is the term used for medical records and billing records about individuals maintained by or for a covered health care provider. The Hospital made no distinction between a “medical record” and “designated record set” and therefore, the records should be supplied. Information regarding the treatment, care, or history that is produced by a health care provider for a patient is part of that patient’s medical record. It’s that simple.
Griffith goes on to further illustrate how the Fifth District’s interpretation is out of touch with the purposes of medical records requests. The legislative intent behind the current version of R.C. 3701.74 is to permit patients free access to their entire medical record, without qualification. It expanded, not restricted, patient rights in this area. In many ways, the accessibility of a patient’s own medical records parallels the broad nature of public records requests. Patients should have unfettered access to records created during their care.
Finally, Griffith describes the undesirable outcomes the appeals court ruling will invariably have. Plaintiffs must file affidavits of merit before filing medical claims, and their prospective experts need all the patient’s records to comply. Plaintiffs will encounter another hurdle when attempting to name all responsible defendants—missing records mean missing names of potentially liable parties, and the inability to serve a complaint upon an unnamed defendant. Most worrisome is that hospitals will be incentivized to sanitize medical records that are filed with their respective medical records departments. The final outcome is obvious, harmful, and frightening for innocent parties attempting to receive adequate medical care.
Aultman Hospital’s Argument
The Hospital agrees that patients have a right to access medical records, but disagrees that every piece of data that exists as part of a patient’s stay constitutes the patient’s medical record. The Hospital posits that Griffith’s totally unfiltered view of what constitutes a medical record is contradicted by the language of R.C. 37101.04. The word “maintained” implies management discretion to decide what should be retained as part of a medical record. “Maintained” means selected for inclusion. Had the legislature intended otherwise, it would have said so. The Hospital asserts that all health care providers are entitled to a filtration system that disposes of documents with no value. It would be impossible for a health care provider to comply with a request for every single document that relates to a patient. Rather, the provider’s selection of the information makes it part of the medical record, regardless of where it is stored.
The Hospital also contends that a designated record set is not the same as a medical record. Instead, a medical record is a subset of a patient specific records within the designated record set. The Hospital disagrees that its interpretation of what a medical record is will encourage concealment of inculpatory information, noting that existing case law will deter hospitals from purposely or fraudulently concealing medical records.
Finally, the Hospital asserts that this appeal should be dismissed as improvidently allowed. There is not a case in controversy here; Griffith has already settled her claim against the Hospital. As such, the outcome of this case will not impact Griffith or grant her redress. This case is also barred by res judicata as Griffith’s claim arising out of the care Howard received has been adjudicated.
Griffith’s Proposed Proposition of Law
A hospital should not be permitted to withhold portions of a patient’s medical record by unilaterally selecting and storing those medical records in a department other than its medical records department.
Hospital’s Proposed Counter Proposition of Law No.1
The medical record of a patient consists of medical data and information concerning the patient that the provider has determined to maintain as the medical record.
Hospital’s Proposed Counter Proposition of Law No.2
An appellate court has no jurisdiction to review matters that do not involve an actual controversy.
Amici in Support of Griffith
Amici, Ohio Association for Justice (“OAJ”) and the Summit County Association for Justice filed a brief in support of Griffith. They propose their own proposition of law, “When a statutory definition is clear and unambiguous, it should not be judicially constrained so as to frustrate the purpose of the statutory right the definition serves.” Medical records have been clearly defined by the legislature and EKG monitor strips are undoubtedly a medical record.
Amici, Stark County Association for Justice (“SCAJ”) and Southwest Ohio Trial Lawyers Association (“SWOTLA”) also filed a brief in support of Griffith. Their position closely mirrors Griffith’s. They argue that a health care provider cannot withhold portions of a patient’s medical record by unilaterally selecting and storing those medical records in a department other than its medical records department. SCAJ and SWOTLA assert that the statutory language is exceedingly clear in this area. The Fifth District erred in its interpretation of R.C. 3701.74. Furthermore, the definition of medical record does not depend on where it is stored.
Amicus, AARP also filed a brief in support of Griffith. In its brief, AARP’s proposed proposition of law reads “The definition of medical records accessible to patients under R.C. 3701.74 includes all records maintained by a provider concerning the patient and is not limited to records selected by the provider to be kept in the provider’s medical records department.” AARP echoed the fundamental rights of medical record review through examples that go far beyond litigation purposes. A patient’s right to informed consent does not just come from a medical professional. Patients must be able to freely access their medical histories in order to make potentially life-altering decisions. The current ruling limits this ability and ultimately, infringes on this right.
Amici in Support of the Hospital
Amicus, The Academy of Medicine of Cleveland & Northern Ohio (“AMCNO”) filed a brief in support of the Hospital. AMCNO asserts that the nature of health care means that hospitals have always, and foreseeably will always, determine what records are filed. AMCNO also submits that Griffith’s statutory interpretation is unworkable as the sheer amount of records generated in today’s digital age would be impossible to store and produce. Attempting to compile every single record produced will actually cause hospitals to be less responsive to records requests because of the effort involved to produce them.
Amici, The Ohio Hospital Association (OHA), The Ohio State Medical Association (OSMA), The Ohio Osteopathic Association (OOA) and Ohio Alliance for Civil Justice (OACJ) filed a brief in support of the Hospital. They trace the history of the current statute, and argue that the medical record is only what the provider maintains, and rightly and fairly so. They argue Griffith’s definition of medical records is untenable and unworkable, and would increase health care costs with no benefit to patients. This would also open the flood gates to liability if hospitals are unable to keep up with the demand.
Student Contributor: Austin LiPuma