United States District Court, W.D. Kentucky, Owensboro Division
CYNTHIA GAY BORUM, as Administratrix of the Estate of Nichole Alyce Borum PLAINTIFF
JUNG WOOK KANG SMITH, MD; DEACONESS CLINIC, INC.; DEACONESS HOSPITAL, INC. and DEACONESS HEALTH SYSTEM, INC. DEFENDANTS
MEMORANDUM OPINION AND ORDER
Brent Brennenstuhl United States Magistrate Judge.
the Court is the motion of Defendants (collectively
“Deaconess”) for a protective order regarding
Plaintiff's request to inspect Deaconess' electronic
medical records, to have Deaconess provide her with an exact
copy of those records in native-format and to allow access to
Deaconess' electronic records system during the course of
depositions (DN 19). The Plaintiff has responded at ¶ 21
and Deaconess has replied at ¶ 26.
of the Case
is the Administratrix of the estate of Nicole Borum.
Plaintiff contends that Borum attempted to harm herself in
the aftermath of the end of a relationship. Following initial
treatment at another hospital, she came under the medical
care of Defendant Dr. Smith, who was employed by a Deaconess
entity. The Plaintiff alleges that on Borum's second
visit, Dr. Smith prescribed an antidepressant. On the third
visit Dr. Smith doubled the prescription for a six-month
supply and scheduled Borum's next visit a year in the
future. Three weeks later Borum committed suicide. She was
twenty-three. Plaintiff claims that the Defendants were
negligent in failing to closely monitor Borum's condition
notwithstanding a product warning that the medication could
increase the risk of suicide in young adults and therefore
close supervision was required.
employs an electronic medical records (“EMR”)
system to maintain patient care records, utilizing a software
system licensed by Epic Systems Corporation (DN 19).
Plaintiff has described her discovery requests to Deaconess:
1. To inspect Borum's medical records in electronic
format on Deaconess' computer system;
2. To inspect Deaconess' EMR system's functionality
by creating a “test” patient in the system and
exploring the system options;
3. To obtain an electronic exact copy of Borum's health
information, including all the meta-data and audit trail
information concerning her records, and print outs or screen
shots of any information Deaconess cannot produce
4. To utilize Deaconess' EMR system during the
depositions of medical care providers and corporate
representatives “which is the only way Plaintiff can
explore the physician's uses and understanding of the
(DN 21 at PageID # 327).
seeks protection under Fed.R.Civ.P. 26(c)(1). The rule
provides that, upon a showing of good cause, a Court may
issue an order “to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense.” Id. The party seeking the protective
order must establish that good cause exists for the entry of
the order by making a “particularized and specific
demonstration of fact, as distinguished from stereotyped and
conclusory statements.” Gulf Oil Co. v.
Bernard, 452 U.S. 89, 102 n. 16 (1981). The Court may
place limitations on discovery if the information requested
is unreasonably cumulative or duplicative or is obtainable
from another, more convenient, less burdensome, or less
expensive source. Fed R. Civ. P. 26(b)(2)(C)(i). The Court
may also place limitations on discovery if the party seeking
discovery has already had ample opportunity to obtain the
information sought or the request exceeds the permitted scope
of discovery under Rule 26(b)(1). Fed R. Civ. P.
26(b)(2)(C)(i) and (ii).
26(b)(1), in turn, instructs that the permissible scope of
discovery encompasses "any nonprivileged matter that is
relevant to any party's claim or defense and proportional
to the needs of the case, considering the importance of the
issues at stake, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources and the importance of the discovery in resolving
the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit." Id.
Consequently, the two prongs of the discovery analysis are
whether the information sought is relevant and whether it is
Plaintiff's Request to Inspect Borum's Records on