Picco v. Glenn

• Decision Date: 05 May 2015
• Docket Number: Civil Action No. 12-cv-02858-RM-MJW
• Parties: GLENN PICCO and FRANCINE PICCO, Plaintiff(s), v. KELLY R. GLENN, D.O., VALLEY VIEW HOSPITAL ASSOCIATION, and GLENWOOD MEDICAL ASSOCIATES, Defendant(s).
• Court: U.S. District Court — District of Colorado

GLENN PICCO and FRANCINE PICCO, Plaintiff(s), v. KELLY R. GLENN, D.O., VALLEY VIEW HOSPITAL ASSOCIATION,and GLENWOOD MEDICAL ASSOCIATES, Defendant(s).

Civil Action No. 12-cv-02858-RM-MJW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

May 5, 2015

ORDER REGARDING DEFENDANT VALLEY VIEW HOSPITAL ASSOCIATION'S MOTION TO ENFORCE SETTLEMENT AGREEMENT

(DOCKET NO. 174)

Entered by Magistrate Judge Michael J. Watanabe

This matter was before this court on April 2 and 3, 2015, for hearing on Defendant Valley View Hospital Association's Motion to Enforce Settlement Agreement (docket no. 174). The court has reviewed the subject motion (docket no. 174) and the response (docket no. 204). In addition, the court has considered the testimony and credibility of Becky Winter, Kelly R. Glenn, D.O., Sylver Brown, David Penrod, and Beth Chow. Furthermore, the court has reviewed and considered all of the exhibits received into evidence during this hearing, taken judicial notice of the court's file, and has considered applicable Federal Rules of Civil Procedure and case law. The court now being fully informed makes the following findings of fact, conclusions of law, and order.

FINDINGS OF FACT

The court finds:

1. That I have jurisdiction over the subject matter and over the parties to this lawsuit;

2. That venue is proper in the state and District of Colorado;

3. That each party has been given a fair and adequate opportunity to be heard;

4. That in the subject Motion, Defendant Valley View Hospital Association ("VVH") seeks the enforcement of the settlement agreement between Plaintiffs and Defendant VVH. This case was mediated on March 7, 2014, and at that time a settlement was reached between Plaintiffs and Defendant VVH;

5. That a document entitled "Basic Terms of Settlement" (Defendant VVH Exhibit 1), which listed the terms of the settlement, was signed by both parties at the mediation on March 7, 2014;

6. That the special terms and conditions included "Counsel for VVH agrees to provide the complete VVH audit trail for Glenn Picco, if in existence," which was agreed to by all settling parties;

7. That the existence and validity of the Basic Terms of Settlement is not in dispute;

8. That the term of the Basic Terms of Settlement that is in controversy here is the undertaking of Defendant VVH to produce

to Plaintiffs "the complete audit trail for Glenn Picco, if in existence;"

9. That Defendant VVH does not deny that a complete audit trail for Glenn Picco exists;

10. That because Defendant VVH does not deny the existence of an audit trail for Glenn Picco, Defendant VVH is bound by the terms of the Basic Terms of Settlement to produce to Plaintiffs the complete audit trail for Glenn Picco;

11. That a complete audit trail should show every person who accessed Mr. Picco's record and show what specific activity they carried out within the record. The documents produced to date do not satisfy this request;

12. That Defendant VVH contends that the complete audit trail for Mr. Picco consisted of the audit view (Defendant VVH Exhibit 6), the transcription changes (Defendant VVH Exhibit 19 and Plaintiffs' Exhibit E), and Mr. Picco's electronic medical record;

13. That Defendant VVH represents that a complete audit trail can be assembled by means of a painstaking comparison of entries and notations to be found in a combination of documents they have produced and the Electronic Medical Record ("EMR"), which they have never produced nor allowed Plaintiffs to have access;

14. That Defendant VVH's contention that they have satisfied the BasicTerms of Settlement by providing Plaintiffs with materials constituting "building blocks" with which Plaintiffs might themselves assemble a complete audit trail is inadequate, because of the aforementioned lacunae in those produced materials on which Plaintiffs are urged to rely (i.e., date limitations, user exclusions, etc.);

15. That the materials Defendant VVH has produced to Plaintiffs do not constitute, alone or in combination, an audit trail;

16. That Defendant VVH's assertion that an audit trail can only be pieced together as described above contradicts its own policies on auditing;

17. That, at all times mentioned herein, Defendant VVH had certain policies relating to auditing;

18. That Defendant VVH had an Audit Logging Policy (Plaintiffs' Exhibit G), the purpose of which was listed as "[t]o establish guidance for recording a user's activity, user exceptions, and information security events to assist in investigations and access control monitoring," the scope of this policy applied "to all information systems storing or transmitting confidential information," and the responsibility for this policy was all hospital staff, physicians, and volunteers;

19. That the EMR is not referenced at all in the Audit Logging Policydirectly or indirectly, and, notably, section 1.0(1) indicates: "Information systems processing confidential information shall create a secure audit record each time a user accesses, creates, updates, or archives confidential information via the system," and 1.0(2) of this policy states: "The audit logs shall include: a unique user identifier; a unique data subject (e.g. the patient) identifier; the function performed by the user (e.g. log-in, record creation, access, update, etc.); and the time and date that the function was performed." (Plaintiffs' Exhibit G);

20. That, at all times mentioned herein, Defendant VVH also had an Access Control Policy (Plaintiffs' Exhibit J), the purpose of which was "to control access to information, information assets, and hospital processes based on business and security requirements," and the responsibility was "[a]ll hospital staff, physicians, vendors, volunteers.";

21. That Defendant VVH also had a policy entitled "Medical Staff and Employee access to HIPAA audit trail" (Plaintiffs' Exhibit N) with the purpose to "provide access to appropriate personnel of audit results" and a scope to "provide documentation of audit trail to Medical Staff and/or Employees requesting such," and that this policy had attached to it "REQUEST FOR AUDIT TRAIL REVIEW - A" (Plaintiffs' Exhibit L);22. That the Medical Staff and Employee Access to HIPAA audit trail policy defines "Audit Trail" as "the summary report of all activity per medical record number and/or visit number including PCI information;"

23. That nowhere within the Medical Staff and Employee Access to HIPAA audit trail policy is the patient's electronic medical record mentioned or incorporated by reference;

24. That Defendant VVH had a policy entitled "Access Control Policy" (Plaintiffs' Exhibit J), the purpose of which was "to control access to information, information assets, and hospital processes based on business and security requirements" and applied to "all personnel with a Valley View Hospital-owned or personal-device connected to Valley View Hospital's network;"

25. That the Access Control Policy defined authorized access pursuant to HIPAA.;

26. That the aforementioned policies produced by Defendant VVH show either: (1) that the documents Defendant VVH has produced are not in fact the documents it creates and stores relating to audit trails, or (2) that Defendant VVH did not follow its own policies, viz., the audit view produced does not delineate the function performed by the user;

27. That, at all points in time, Defendant VVH and its providers, including employees, have the exclusive control of Mr. Picco'sEMR, which Plaintiffs have never been permitted to inspect;

28. That, at all points in time, Defendant VVH and its providers, including employees, have been in the exclusive control of Mr. Picco's paper medical record;

29. That, at all points in time, Defendant VVH and its providers, including employees, have been in the exclusive control of all audit information relating to Mr. Picco's medical record;

30. That, at all points in time, Defendant VVH and its providers, including employees, have been in the exclusive control of any database(s) containing Mr. Picco's electronic medical information;

31. That Dr. Glenn's name does not appear in the 106-page "Patient Audit View - Detail by User," while Michael Stahl, M.D., Mr. Picco's treating physician for January 1, 2011, does appear in the 106-page "Patient Audit View - Detail by User," namely on January 1, 2011, January 2, 2011, and January 10, 2011;

32. That Nurse Brown does appear in the "Patient Audit View - Detail by User" with multiple "views" pertaining to her care and treatment of Mr. Picco on December 25, 2010;

33. That Nurse Brown does appear as a "view" in the "Patient Audit View - Detail by User" with multiple "views" entries on January 1, 2011, and January 2, 2011, when she was not caring for Mr. Picco;

34. That Nurse Brown was not the nurse who cared for Mr. Picco on January 1, 2011;35. That Nurse Brown accessed Mr. Picco's January 1, 2011, EMR (Acct V31275837) on January 1, 2011, at 20:00:53, hours after Mr. Picco had been transferred to St. Mary's Hospital & Regional Medical Center;

36. That Nurse Brown accessed Mr. Picco's December 25, 2010, EMR (Acct V31262181) on January 1, 2011, at 20:01:05 and, according to the audit view, she is noted to have accessed both charts;

37. That Nurse Brown accessed Mr. Picco's December 25, 2010, EMR on January 2, 2011, at 00:52:38;

38. That Nurse Brown could not explain why she accessed Mr. Picco's medical chart on January 1, 2011, and January 2, 2011, and the circumstances surrounding those accesses;

39. That Nurse Brown does not remember, and cannot explain, what actions she was performing in Mr. Picco's electronic medical record on January 1, 2011, and January 2, 2011;

40. That Plaintiffs first requested the complete audit trail from Defendant VVH for Mr. Picco starting on August 7, 2013. SeePlaintiffs' Exhibit Y at p. 1;

41. That, on October 21, 2013, Defendant VVH produced a 106-page document entitled "Patient Audit View - Detail by User." SeeDefendant VVH Exhibit 6;

42. That the Patient Audit View - Detail by User produced

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