The Oklahoma Bar Journal September 2025

and procedures alone do not set the standard of care. 14 Therefore, hospital policies and procedures may serve as evidence to show how to perform in certain situa tions, and if a health care provider deviates from that policy, it can be strong evidence to support neg ligence. Conversely, health care providers can argue these policies do not set the standard of care and are merely guidelines, and a health care provider’s judgment – including training, experience and education – should prevail over a written policy. Attorneys seeking discovery of hospital policies should be specific with requests and use targeted language. For instance, instead of requesting “all hospital policies,” tailor the specific request to the issues in the lawsuit, such as “the fall prevention protocol in place for the medical-surgical unit” during the relevant time period. Another approach is to request the table of contents for the poli cies and procedures related to the issues in the case. For example, if the case involves labor and deliv ery, then the attorney can request a list of labor and delivery policies and procedures. The attorney can then identify policies and proce dures on that list that are relevant to the issues in the lawsuit. Finally, a health care facility may object to policies and procedures based on trade secrets or the confidential nature of the documents. In that instance, the parties can execute protective orders to resolve confi dentiality concerns.

an interrogatory and a request for production. The interrogatory asks the health care facility to identify specific audit logs the medical record system maintains. The request for production requests all audit records, which include changes, deletions, access and other activity of the patient’s electronic medical record. The request for the audit records needs to be a separate request from the request for a copy of the electronic medical records. In response to the requests for audit logs, health care facilities/ defendants can argue that audit logs are thousands of pages, and not all the information contained within the voluminous audit log is relevant to the specific treatment at issue. Further, it can be argued that there could be protected and privileged information contained in the audit logs, including when a hospital’s attorney, risk manager and/or peer review committee reviewed information in a patient’s medical record. These objections can be overcome by agreeing to limit the scope of the audit log that is requested and agreeing to redact information the health care facility is claiming a privilege. In Oklahoma medical malprac tice cases, audit logs serve as silent witnesses to the creation and modification of the medical record. While courts have yet to establish detailed precedent, Oklahoma’s broad discovery rules and HIPAA’s audit requirements support their use. As electronic records dominate health care, attorneys must become adept at using audit logs to test the integrity of the chart – and the cred ibility of those who authored it. POLICIES AND PROCEDURES Policies and procedures are guidelines of health care institutions

to assist staff in providing safe care to patients. In the litigation context, especially in medical malpractice cases, these internal documents may establish what a hospital expects of health care providers in certain situations. For example, a hospital may have a sepsis (infection) proto col that includes a checklist of what health care providers should do when a patient is suspected of hav ing sepsis. In medical malpractice lawsuits, policies and procedures can support a plaintiff’s theory if a health care provider deviates from these guidelines or support a defense if the health care provider follows the guidelines. Therefore, these are important to obtain during discovery to provide a foundation for those claims to be litigated. Like audit logs, there is no spe cific Oklahoma Supreme Court or Oklahoma Court of Civil Appeals opinion or statute about the discov ery of policies and procedures in a medical malpractice case. Thus, an attorney must rely on the general rules related to the discovery of admissible evidence. 12 Additionally, like audit logs, Oklahoma state district courts that have litigated medical malpractice cases have familiarity with policies and pro cedures. A party should attempt to obtain prior orders from a trial judge regarding production of hos pital policies and procedures. There are federal district cases and cases from other states regarding discovery of policies and procedures that can assist with arguments regarding dis covery of policies and procedures. Courts have held that policies and procedures are relevant as evidence to show what measure of caution may be exercised in certain situations. 13 But courts have cautioned that the policies

CREDENTIALING

Credentialing medical pro fessionals is a core component of health care administration, meant to ensure that practitioners meet

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL