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Court: Medical record loss is negligence

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If a hospital or provider loses records so that a patient can't pursue a medical malpractice case, the Indiana Court of Appeals says state law allows that person to pursue a separate civil action for spoliation of evidence.

Applying 3-year-old precedent from the Indiana Supreme Court and additional guidance offered by the highest court in Illinois, a three-judge appellate panel has determined a private cause of action is established under Indiana Code 16-39-7-1 about the consequences of violating the state's medical record retention statute. The unanimous decision comes in Howard Regional Health System, et al. v. Jacob Z. Gordon b/n/f Lisa Gordon, No. 34A02-0902-CV-179.

The case involves multiple disorders that Jacob Gordon suffers from that could have been caused by substandard medical care at the time of his birth in 1999. His mother, Lisa, filed a medical malpractice action and asked for evidence from the hospital where her son was born, but Howard Community Hospital responded 18 months later that some of the nurse's narrative notes, labor records, and initial fetal data information couldn't be located. A neonatal doctor later determined he couldn't provide an opinion about potential medical malpractice because of the missing evidence.

Gordon asked for partial summary judgment about whether the hospital had a duty to preserve the evidence, whether it breached that duty, and whether that breach made it impossible to pursue a separate med mal action.

The Court of Appeals found the spoliation of evidence claim is outside the scope of the state's Medical Malpractice Act and the trial court had jurisdiction to hear the case. The panel relied on H.D. v. BHC Meadows Hosp. Inc., 884 N.E.2d 849 (Ind. Ct. App. 2008), that determined a health-care provider's negligent or reckless dissemination of a patient's confidential information to the general public wasn't within the boundaries of the Medical Malpractice Act.

On the availability of a private right of action for loss of medical records, the appellate panel held that a hospital is required by Indiana Code § 16-39-7-1 to maintain its health records for seven years and if a hospital violates that statute, it commits negligence per se and a private action is available.

Relying largely on the Indiana Supreme Court decision of Kho v. Pennington, 875 N.E. 2d 208 (Ind. 2007), the appellate panel determined violating the statute creates a private cause of action and rejected the hospital argument about an administrative disciplinary remedy preventing the separate claim.

"It is apparent in the case before us that the statutory sanctions involving 'the provider's licensure, registration, or certification' ... would similarly be 'wholly ineffectual' to remedy the harm Gordon would suffer if the loss of records made it impossible to bring a malpractice action," Judge Melissa May wrote, citing a similar Illinois Supreme Court ruling from 1992.

Aside from those issues, the Court of Appeals also addressed the availability of third-party spoliation claims and that summary judgment was appropriate in this case because Gordon had established that the record loss was the proximate cause of the harm alleged.

Indianapolis attorney John Muller with Montross Miller Muller Mendelson & Kennedy said he was pleased with the decision for his client, while Indianapolis attorney Bryan Babb representing the hospital said a transfer petition to the Indiana Supreme Court will likely be filed in the case.

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  1. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

  5. I would like to suggest that you train those who search and help others, to be a Confidential Intermediary. Original Birth Certificates should not be handed out "willie nillie". There are many Birth Parents that have never told any of their families about, much less their Husband and Children about a baby born prior to their Mother's marriage. You can't go directly to her house, knock on her door and say I am the baby that you had years ago. This is what an Intermediary does as well as the search. They are appointed by by the Court after going through training and being Certified. If you would like, I can make a copy of my Certificate to give you an idea. you will need to attend classes and be certified then sworn in to follow the laws. I still am active and working on 5 cases at this time. Considering the fact that I am listed as a Senior Citizen, that's not at all bad. Being Certified is a protection for you as well as the Birth Mother. I have worked with many adoptees as well as the Birth Parents. They will also need understanding, guidance, and emotional help to deal with their own lost child and the love and fear that they have had locked up for all these years. If I could talk with those involved with the legal end, as well as those who do the searches and the Birth Mothers that lost their child, we JUST might find an answer that helps all of those involved. I hope that this will help you and others in the future. If you need to talk, I am listed with the Adoption Agencies here in Michigan. They can give you my phone number. My email address is as follows jatoz8@yahoo.com. Make sure that you use the word ADOPTION as the subject. Thank you for reading my message. Jeanette Abronowitz.

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