ILNews

Court: Medical record loss is negligence

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  2. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

  3. Science is showing us the root of addiction is the lack of connection (with people). Criminalizing people who are lonely is a gross misinterpretation of what data is revealing and the approach we must take to combat mental health. Harsher crimes from drug dealers? where there is a demand there is a market, so make it legal and encourage these citizens to be functioning members of a society with competitive market opportunities. Legalize are "drugs" and quit wasting tax payer dollars on frivolous incarceration. The system is destroying lives and doing it in the name of privatized profits. To demonize loneliness and destroy lives in the land of opportunity is not freedom.

  4. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  5. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

ADVERTISEMENT