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. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  2. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  3. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

  4. Lets talk about this without forgetting that Lawyers, too, have FREEDOM OF SPEECH AND ASSOCIATION

  5. Baer filed with the U.S. Court of Appeals Seventh Circuit on April 30 2015. When will this be decided? How many more appeals does this guy have? Unbelievable this is dragging on like this.

ADVERTISEMENT