Justices reverse ruling against hospital on spoliation claim

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Relying on workers’ compensation cases involving first- and third-party spoliation claims, the Indiana Supreme Court has declined to recognize similar claims regarding medical malpractice suits.

Lisa Gordon sued Howard Community Hospital, alleging it committed medical malpractice while caring for and delivering her son, Jacob. In her complaint, she included a count for spoliation, saying the hospital had lost certain medical records associated with her son’s care and the loss made it impossible for her to pursue a medical malpractice claim against one of Jacob’s doctors. The Gordons moved for partial summary judgment against Howard Regional with respect to their third-party spoliation claim, which the trial court granted.

On interlocutory appeal, the Indiana Court of Appeals affirmed, but the justices reversed Wednesday in Howard Regional Health System, et al. v. Jacob Gordon, b/n/f Lisa Gordon, No. 34S02-1009-CV-476. Chief Justice Randall T. Shepard wrote for the majority, addressing whether the spoliation claim falls under the Medical Malpractice Act, requiring a medical review panel to give its opinion before an action against the hospital can begin, and whether the Gordons even have a claim for spoliation.

The majority concluded that the claim falls under the general scope of the Medical Malpractice Act and Indiana’s statute on maintenance of health records does not create a private right to action.

“The Gordons’ underlying claim in Count II alleges medical malpractice because the ‘[m]aintenance of health records by providers’ is so closely entwined with health care and because records in general are so important to a medical review panel’s assessment of whether the appropriate standard of care was met,” wrote the chief justice. “Surely the skillful, accurate, and ongoing maintenance of test and treatment records bears strongly on subsequent treatment and diagnosis of patients. It is a part of what patients expect from health care providers. It is difficult to contemplate that such a service falls outside the Act.”

Relying on Gribben v. Wal-Mart Stores Inc., 824 N.E.2d 349, 350 (Ind. 2005), and Glotzbach v. Froman, 854 N.E.2d 337 (Ind. 2006), which dealt with first- and third-party spoliation claims in worker’s compensation cases, the majority found that the Gordons actually present a claim for first-party spoliation. In Gribben, the high court declined to recognize first-party spoliation claims and instead would address the claims through sanctions. It’s unknown at this point if the Gordons are entitled to any sanctions against the hospital.

Justice Brent Dickson concurred in result, writing, “While I conclude that (a) the Gordons' spoliation claim does not necessarily fall within the constraints of the Indiana Medical Malpractice Act; (b) the undisputed evidence establishes that the Hospital breached its statutory duty to maintain medical records; and (c) the Gordons' claim against the Hospital for loss of records that impairs their claims against the non-Hospital defendants is for third-party, not first-party spoliation; I am nevertheless persuaded that the elements of proximate cause and damages are not established in this third-party spoliation case. It is for this reason that I agree to reverse the grant of partial summary judgment.”


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  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.