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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. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  2. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  3. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

  4. This is why it is important to consider Long term care insurance. For you and for your loved ones

  5. I am terrified to see Fracking going on not only in Indiana but in Knox county. Water is the most important resource we have any where. It will be the new gold, and we can't live without it and we can live without gold. How ignorant are people?

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