Cleveland Clinic Indian River Hospital is accused of stalling again on still more evidence in a major malpractice case involving a mother of five, Toshuua Hughes, who never woke up from anesthesia after a hysterectomy and remains unresponsive four years later.

The filing for a motion of civil contempt and request for sanctions comes after the plaintiffs’ attorneys learned that the underlying data of the electronic health record module where physicians enter the majority of their notes on patients was set to erase after 30 days.

The module’s data also did not automatically flow into an audit database that could be easily searched to reveal, among other things, any changes, additions or deletions. All other modules by the same company have that capability, according to a Sept. 29 deposition of the hospital’s IT director, Brian Myszkowski.

The scheduled metadata disappearance – which may have been in place as far back as 2012, if not earlier – is still occurring today, Myszkowski said. That means while a final report on a patient can be viewed, the underlying data – including any changes that were made, when they were made and who made them – does not show up after 30 days.

Cleveland Clinic Indian River did not respond to questions about the data issues, and said only that it “remains committed to providing high-quality, safe care to the community we serve.”

“This case was brought almost a year before Indian River Medical Center joined the Cleveland Clinic health system,” spokesman Scott Samples said. “Because there is currently litigation, Cleveland Clinic Indian River Hospital cannot comment on specifics related to the case.”

At the time of the incident, the hospital was locally run and not part of Cleveland Clinic, which took over in January 2019.

Myszkowski confirmed an email statement of June Hoffman, the hospital’s lawyer in the Toshuua Hughes case, that the hospital had only recently learned of the failure to copy audit data from the physician hub over to the audit database.

Yet the software situation, which Hughes’ attorneys believe may be in violation of state and federal laws, appears to be no different today than it was in the summer of 2017. 

In the same email, Hoffman said, “IRMC contacted Allscripts (the hospital’s EHR software company at the time) for assistance in building a program to generate the requested report on a per health care provider basis without success.”

In fact, offers by the hospital’s software company to give a quote to create such a tool were “ignored” by the hospital, according to Hughes’ attorneys, David Carter and Dane Ullian.

Such a tool might help recreate key elements of physicians notes – specifically, any changes to them – that were automatically overwritten. That purge would have come 30 days after Toshuua Hughes, then 42 and just coming out of a routine hysterectomy, suffered a catastrophic post-operative deprivation of oxygen. She remains in a persistent vegetative state, cared for in a specialized Sarasota nursing home.

Myszkowski said as far as he knew, since the time the module was first put in place, no one had realized it wasn’t moving data to the audit database where it could be audited like the other modules.

But in his deposition, he vacillated on whether a recoverable “audit trail” of changes exists.

“I believe there is a full audit trail that exists, but not necessarily in a specific database for this specific report written against it,” he said.

But when Ullian pressed him on why that trail wasn’t already in his hands, Myszkowski seemed to draw a blank.

“Why can’t I get a report that shows additions, modifications and deletions?” asked Ullian. “Is the data there and you just don’t have the tool to pull it, or is the data not there?”

“I don’t know,” Myszkowski said.

“Who is working on that problem right now?” asked Ullian.

“So we are – I don’t know if anyone is working on that problem right now,” answered Myszkowski.

The hospital also said it has no way of providing Hughes’ attorneys with audit data by medical provider. Carter and Ullian have asked for data on all patients seen by a particular provider on a given date – the anesthesiologist was their example. 

Ullian asked Myszkowski how IT would respond if hospital president Dr. Greg Rosencrance wanted to learn if a doctor was altering records.   Myszkowski said they would put together a list of patients assigned to that doctor, and Rosencrance could examine each individual medical record for alterations. He added that he himself had dealt with a similar scenario in that manner.

For Carter and Ullian, it took hiring an IT forensic examiner to find that Hughes’ records had been altered to reflect that she went without oxygen for a much shorter period than actually was the case. In addition, records showed that a Code Blue was called for Hughes, but a nurse’s handwritten timeline showed no such emergency signal ever occurred.

The year-long delay in producing critical evidence requested by the plaintiffs caused Circuit Judge Janet Croom to add punitive damages in the case. That ruling, in April of this year, came on top of a ruling in August 2020 to lift Florida’s medical malpractice caps on awards.

Those two moves, added to the costs of caring for Hughes for her lifetime, could put a possible award into the realm of $100 million, according to attorney Carter.

Within weeks of the incident, a hospital leader circulated a plan to avoid future scenarios like the one involving Hughes. That plan was in an email that took more than three years for the hospital to provide to Hughes’ attorneys, despite repeated demands for such evidence.

While Cleveland Clinic Indian River was apparently stonewalling on discovery efforts, the hospital’s malpractice insurance company was simultaneously suing the hospital over the Hughes case in federal court.

According to Hughes’ attorneys, the documents produced in that case revealed a strategy of admitting liability in hopes of going to arbitration and thereby avoiding producing evidence. But the plaintiffs opted to go to trial instead, and the flow of evidence has been constricted, to say the least.

In the latest action calling for the judge to hold the hospital in civil contempt as well as order further sanctions, attorneys say the hospital has not complied with an April 29 court order on discovery issues.

In an August filing, plaintiffs’ attorneys said they believe the 30-day overwrite policy “– if true – represents gross non-compliance of federal law.”  They expressed particular dismay over the fact that the routine deletion came despite the specter of legal action.

“The fact that IRMC would allow this overwrite in the face of a known catastrophic outcome and ‘potentially compensable event’” – the attorneys were quoting a hospital internal communication – “is an issue plaintiffs must be able to explore.”