Free Plaintiff-Side Resource · Apr 2026

AI Scribe Discovery Checklist for Medical Malpractice Cases

Roughly 42% of US medical groups now run an ambient AI scribe (DAX, Abridge, Suki, Augmedix, etc.) during patient encounters. The AI generates a draft note that the physician edits before signing — leaving a "dual record" most plaintiff attorneys aren't yet asking for in discovery. This checklist walks you through finding it.

6 steps · ~20 min 5 vendors covered 7 paste-ready discovery requests
0 / 6 steps reviewed

Step 1 — Identify the providers and dates of care

Before you ask whether an AI scribe was used, scope who and when.

Ambient AI scribes started rolling out at scale in 2023 and crossed the 40% adoption threshold in early 2026 (Elion Health / KLAS data). Care delivered before mid-2023 is unlikely to involve an AI scribe; care delivered after January 2024 at any mid-to-large health system should be treated as presumptively scribed until disclaimed.

Tasks

Note: Telemedicine and tele-consult encounters are disproportionately scribed because the ambient audio capture is already part of the videoconference stack. Don't skip those notes.

Caselaw, opinions, and commentary

What's been filed, what regulators have said, what's still unsettled.
Sharp Rees-Stealy AI Scribe Litigation (S.D. Cal., filed Jan. 2026)
Putative class action — patient plaintiffs alleging that the health system's deployment of an ambient AI scribe produced systematically inaccurate notes diverging from what was discussed in the encounter, with discoverable drafts allegedly purged or overwritten.

The case is in early pleadings as of April 2026 and has not produced merits rulings. It is the highest-profile filed pleading raising the dual-record / spoliation theory in the AI-scribe context. Verify caption, docket, and current status before citing.

ABA Formal Opinion 512 (Generative AI Tools)
American Bar Association Standing Committee on Ethics and Professional Responsibility (2024)

Op. 512 addresses lawyers' duties when using generative AI, but the Standing Committee's commentary explicitly anticipates that the same dual-record / spoliation problem will arise on the healthcare side and that opposing counsel should plan to discover AI-tool inputs and outputs separately from the final work product. While the opinion does not bind healthcare defendants, plaintiff briefs cite it for the persuasive proposition that AI drafts are discoverable artifacts in their own right.

HHS / OCR HIPAA guidance on AI documentation (ongoing)
U.S. Department of Health and Human Services, Office for Civil Rights — guidance documents 2023-2025

OCR has confirmed that AI scribe vendors are HIPAA business associates and that the audio, transcripts, and drafts they generate are PHI subject to the BAA's retention and access provisions. This is the foundation for asserting that those records exist within the covered entity's HIPAA "designated record set" and are accessible via a HIPAA right-of-access request as well as via discovery.

State medical board guidance (varies)
California, Texas, Florida, New York medical board opinions — 2024-2026

Several state medical boards have issued informal opinions or position statements requiring physicians to review and attest to AI-generated documentation before signing. These opinions provide a standard-of-care benchmark for cross-examining a physician who signed an AI draft without meaningful review. Verify your jurisdiction's current guidance directly with the relevant board.

Independent verification required: All caselaw and regulatory references on this page are pointers for further research, not legal authority. Confirm dockets, opinions, and status with primary sources before relying on them in a brief. Healthcare-AI law is moving fast.

Background — why this checklist exists

How big is the AI scribe market today?

As of early 2026, industry surveys (Elion Health, KLAS, AMA member surveys) consistently put US ambient-AI scribe adoption among medical groups at roughly 42%, up from under 10% at the end of 2023. Adoption is concentrated in primary care, emergency medicine, and high-volume specialty clinics; it is rising fastest in mid-sized health systems that signed enterprise contracts with Abridge, DAX Copilot, or Suki in 2024-2025.

What is the "dual record" problem?

An ambient AI scribe captures the patient encounter (audio, transcript, structured note draft), produces a draft note, and presents that draft to the physician for review. The physician edits and signs. The signed version goes into the EHR; the draft frequently does not. The result is two records of the same encounter — a contemporaneous AI-generated record and an edited human-signed record — that may diverge on clinically material facts.

Why does the plaintiff bar care?

In a malpractice case, the signed note is what the defendant will produce. But the AI draft (when it exists and is retained) is a contemporaneous, less-edited record of the same encounter. It can corroborate or contradict the patient's account, expose what the physician chose to omit on edit, and surface failures in the standard of care that the final note papered over.

Aren't there privacy issues with subpoenaing audio of patient encounters?

The patient is the plaintiff and has typically waived privacy as to records of their own care for the purposes of the litigation. A protective order is standard. The vendor's privacy policy generally permits disclosure under valid legal process. The harder question is incidental privacy of other patients whose voices may have been picked up — that's typically handled with redaction.