statute the patient safety and quality improvement in congress designed this two thousand five legislation to create a new national health care period it focuses on information sharing the associate general counsel for in goals that these documents were prepared and certainly prepared for purposes of submitting to the clearly p s l and for the purposes of providing this information and they really provided the documents route provided we're down to we're down to actually through documents after the initial initial objections and so forth were sort of sorted out so i think it's i think it's very important and i wan interesting that the information obtained if it were used in another context would  said i think there's a yes my question is if these are if what's in the materials that you don't want to ask cause if they contain what would normally be considered medical records eyeball issue for purposes of this privilege as to whether there should be sort of a judgment made as to whether there's information that that there was no finding by the trial court that there was a deficiency in the medical records that the trial court said was that the trial for it looked at the at the pages of these these filled with words that were tendered to the court set aside and said that's nothing to worry about that no need to produce what it actually doesn't even pertain to the the inside of this that's discussed and plaintiffs complained and looked at the effort to do it in that case because the court also i'd like to first of all would dress the clarification person of a statute subsection big this looks like a statute prepared by parties on both sides who reached a compromise and that's what the federal register says it is a compromise bill information described in sept paresh which defines the work product does not include information collected maintained or developed separately  we don't know who wrote the reports we don't know the source of the information we do know from the way or those data where that information was collected from that is a failure on the part of the defendant to meet its burden to establish due respect didn't prepare these reports news conway didn't produce a record or an affidavit of anyone who didn't prepare the reports miscount ray and no one else provided information as to what the sources were so we can say that the information doesn't collected separately or that it doesn't exist separately because the person who would know is the author of the records the record is silent the defendants did not choose to bring  it sort of gets outside of the adversarial system one can see whose name might be on the report but i don't know for example but well that person had and i would think that if someone was putting on trying to create a record yes but the point of it is it's the defendant's wish to establish that the information was not collected separately was not maintained separately did not exist separately for less about a ration system they could have done so they chose not their choice but probably only we have i know of the benefit of at least knowing what the trial court thought the trial court felt that there was personal health information and conversations with the seedings now decisions family members about the events that took place in the hospital so you're aware only from what the trial court said on the record so so i think then at least that's all that what is contained in these in some way relates conflated the m s a and this act i think no i think the trial court understood are two different standards but the court was saying if you were taking information that's that looks like it's from a medical record but you're telling me it's not from a medical record that was cynical but that's his experience card yet so we're not going to find that information unless it's documented somewhere i take the view that what the the congress was trying to do was to say we're going to set up a separate him for separate system for new information to be reported and if it's in bed new information it gets reported to clarity or whomever fineness prove it but anything that's not new information it exists separately it was collected separately is maintained separately that's not part of the privilege for good reason because that should be discoverable and produced let me as an example what you think would for example if the hospital did an analysis and said reason scaly that the nurse did not use it did not test for breath because she didn't know hal and our conclusion is you know she just did not have to do a  that someone's assessment based on their backgrounds etc for example if you look at i think it's subsection to apply to any of the at anything the talks about someone's process of making have a piece of paper to write because the people privileged it depends where it started that piece of paper may have spared by that nurse got home that night realized the terrible thing happening and here she took notes found that's not privileged but i don't think anybody's were claiming the medical study said just part of that will under the federal wall those are protected by federal statute if they are prepared for some other process so that the defendant as the case has gone through says ok we'll restoring the medical studies that claim but they've already said on the record that from this we're prepared as part of the purity process those things are not protected by the federal law at defended it this this federal business that goes we have no basis to know in this record that's what happened here and i think the opposite is true because we know from what the court said there were conversations in person personal health information now if there's personal health information that wasn't reported in the medical record it should have been relayed ministry of coast says the medical record has to be accurate and complete and to the extent that some of the reporting things that aren't in the medical records you know one of these reports i suspect it was collected separately we don't know but that's the problem with the affidavit here we don't have any basis to know who prepared it what information they collected it may will  test on her fine let's just say there's a record that biotechnology has that says the meter was broken we assessed the meter afterwards and the nurse couldn't use it well that's a record that's a separate record here so far it was and it was included in the the p s l or the materials gathered to to do this patient safety reporting but that doesn't mean if it exists separately you can find that out through normal discovery find out more who was it who made this one thing report and that's right it's so critical for all these cases unfortunately i'm sure we'll see more for the person who prepared the report to prepare an affidavit to identify i'm running from a shoe was collected and to defeat the clarification information system or the patient safety evaluation if it's within said big because the record already exists so but so be talks about this information collected separately so separately from the system system and this would be any medical record this would be any document that is in existence before the person is sitting there at the portal doing his or her work that is not covered and we don't know of a few things that judge not good which so she threw that out and then she felt that there was not a foundation to say that if things are for personal medical information they're not mature defense counsel says they're not in the trial so should be turned over and there's a perfectly appropriate for her honor to approve that way and frankly i would differ with my colleague on the burden of proof i think they have to show that the course decision below was against the manifest weight of the evidence the affidavit was in sufficient to establish all elements  information was put in there by the person at the purple writing the information we don't know what the information was collected and i might my assumption is the court believed that personal health information must to come from a medical provider how it got to the prideaux person we don't know i'm assuming the person sitting at the court is not one of my clients doctors or nurses so some help personal health information gets to the portal it probably it's not ambiguous the court simply needs to apply it and it's a matter of did they meet their burden of showing that those items circled by judge johnson are in fact if and i they haven't negated the clarification so i react that's their burden a corporation in that case and it was the his in bed any mention of a problem with foundation for this affidavit until now that we're now that we're talking about it here in the appellate court that those issues could it is a general standard but i think we went under either standard so i think oftentimes in these privileged issues are still sort of some mixing of the standard but i think it's clear here that the standard is not appl act so i think you know in an effort to to sit to try and mining something from the crew it's comments about you know to and to reach the conclusion that there's something wrong with the medical records  burden it needs to be prepared needs to be met councell mention that conversations are not part of the medical record which was frankly reminds me that you know once again there is no there is no stopping discovery entire the clearly decided that we could proceed up here by fiat by agreeing to enter the order on the family contents finding in and point she did state discovery but it wasn't still before that contact the maker of the work machine sure there's a better term than blood machine but let's go with it i prefer that and brought it in so if if if you say you know when you know something was wrong or not and he sent your email saying yeah it was broken that day if that e mail was generated in response to your request pursuant to this federal reporting your position would be they male is privileged yes i think i think this is a