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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. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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