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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. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

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  3. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  4. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  5. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

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