Trial Magazine

Hospitals are hotbeds for electronically stored information, and the electronic monitoring devices hospitals use for patient care are increasingly being integrated with electronic health record software systems through the so-called “Internet of Things.”

This does not mean, however, that this additional—and extremely useful—data will automatically appear in the medical records that hospitals produce during discovery. Crafting a 30(b)(6) deposition notice tailored to determine what, when, where, and how hospitals collect and store electronic data is crucial. 

Here are some categories of data to look for:

1. Records and audio recordings of phone calls and pages to doctors, nurses, critical care teams, etc.
2. Mobile devices carried by nurses. 
3. Electronic monitoring systems for patient vital signs.
4. Data from code alarms. 
5. Data from patient wrist band scans (e.g., each time medication is administered). 
6. Data from patient call buttons.
7. Audit trails and audit logs. 

You must serve a detailed 30(b)(6) deposition notice specifying the topics you intend to address at the deposition. I write out the topics and questions in plain language so the judge can easily understand what I’m asking for when the defense files a motion for a protective order. 

For example, for number 2 above, you might include in the notice: What mobile devices do nurses carry that are related to patient care? What is each and every function of those devices? Do—or can—those devices track the nurses’ locations? Are there sensors that monitor or track when a nurse enters a patient’s room? If so, how does that system work? What sensors are in the patient’s room or doorway that enable the system to track when a nurse has entered a patient’s room?

Also include questions about the electronic data specific to your client’s care, as well as a Rule 34 request for the data itself. You should also include a notice of inspection, including a request to inspect and photograph the actual electronic devices the hospital uses. These few tips will go a long way to securing the data and the documents you need. 

Dustin Herman is an attorney at Spangenberg Shibley & Liber in Cleveland. He can be reached at dherman@spanglaw.com.