Cornwell v. N. Ohio Surgical Ctr., 2009 WL 5174172 (Ohio. Ct. App. Dec. 31, 2009)
In this wrongful death litigation, the trial court granted plaintiff’s motion to allow his forensic expert to create a mirror image of defendants’ hard drives. Plaintiff asserted that examination of the drives would reveal evidence of defendants’ willful alteration or deletion of relevant evidence. The court granted the motion despite defendants’ objections that such access would violate statutory and common law prohibitions against the disclosure of confidential medical information and that such access was not authorized under Fed. R. Civ. P. 34. Defendants appealed. On appeal, the order of the trial court was affirmed.
Plaintiff’s wife, Mary Cornwell, suffered cardiac arrest during arthroscopic knee surgery and died six days later. In plaintiff’s suit for wrongful death, a question arose as to the surgeon’s knowledge of Mrs. Cornwell’s history of hypertension and the medication(s) she was taking. The surgeon claimed no such knowledge. However, several pieces of documentary evidence (including two “office notes” and a letter) called the veracity of that claim into question. Following the depositions of the surgeon’s resident and an employee of the clinic, plaintiff came to believe that defendants had purposefully altered the content of certain electronically created evidence related to the surgeon’s knowledge of Mrs. Cornwell’s medical history. Based upon the deposition testimony and evidence that “despite [plaintiff’s] request” defendants “permitted an information technologist access to the desktop computer upon which the office note was transcribed” and that the computer was thereafter “rendered nonfunctional,” plaintiff amended his complaint to include claims of spoliation and fraud.
Plaintiff then sought to create a mirror image of the hard drives upon which the relevant documentary evidence was created. Defendants objected claiming that “their hard drives contained privileged health information of ‘hundreds of other patients’” and argued, essentially, that such access would violate both statutory and common law prohibitions against the dissemination of confidential patient information. The motion was granted and the court issued a detailed order defining the protocol to be followed when creating and analyzing the mirror image of the drives.
