On September 2, 2015, the Supreme Court of Ohio heard oral argument in the case of Gene’a Griffith, Executrix for the Estate of Howard E. Griffith, Deceased v. Aultman Hospital. At issue in this case is whether records not maintained in a medical records department are part of a patient’s discoverable medical record.
The court was all over the place in this nearly hour long argument, which you can read about here. I read an extremely interesting potential solution to the problems raised in the Griffith case in an article by Richard Weiner, an Ashtabula lawyer who writes about legal technology, in the October 5 Akron Legal News, which I am posting here with the permission of the Akron Legal News and with my thanks to Mr. Weiner, who wrote:
“The court kept asking how to formulate a decision that would encompass future cases but seemed to me at least confused about the technological environment in which this decision takes place and how to project that environment into future cases.
“Here’s a potential solution, subject to the always-present cost-benefit analysis, as well as the understanding that this solution is beyond the power of the court to order:
“All hospital data of any kind, from any in-provider source, could be transferred to and kept permanently in a cloud data system, each data point pegged to an individual patient and kept in a discrete file folder. Whenever a patient, attorney or the provider itself needs access to that data, it could easily be provided without ever printing anything out and without the need to physically access any hard drives.
“That may not be the easiest technology to accomplish, but it is a permanent solution to this problem. And that would bring the medical records industry all the way up to 2015.
“Just a thought.”
I very much appreciate this proposed solution. It was clear during the argument that the justices were struggling over what I called the burdensomeness issue. Chief Justice O’Connor was most outspoken about the fact that she did not see saving records electronically to be a large burden; Justice O’Donnell talked a lot about hard drives. It was clear at the argument that the justices were struggling with the relevant technology (as was I, as a listener).