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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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