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Judgment for podiatrist who failed to keep records affirmed

May 30, 2018

The Indiana Court of Appeals has affirmed summary judgment for a podiatrist facing a medical malpractice claim, but opined that his failure to keep adequate medical records should have been grounds to allow the claim against him to continue.

In Rickie Henderson v. Elliott Kleinman, D.P.M., 84A01-1710-CT-2566, Dr. Elliott Kleinman operated on Rickie Henderson’s right foot on Aug. 27, 2010, but the pain in her foot continued. When another doctor told Henderson her lingering pain was likely caused by the surgery, she filed a medical malpractice complaint alleging Kleinman failed to meet the appropriate standard of care.

A medical review panel reviewed the complaint but failed to conclude whether Kleiman met the standard of care due to his failure to keep adequate records. Henderson then took her complaint to the Vigo Superior Court, where Kleiman moved for summary judgment and designated the affidavit of Dr. J. Michael Miller, who stated Kleinman’s records “provided (him) with sufficient information to reliably formulate and render” an opinion on whether Kleinman met the applicable standard of care. Miller then stated Kleinman met that standard during the August 2010 surgery, and the trial court granted Kleinman’s summary judgment motion.

The Indiana Court of Appeals affirmed that decision on Wednesday, though the court noted it was dealing with “an extremely unusual case.”

“There is no statutory authority or reported case law establishing a duty to maintain ‘adequate’ records,” Judge Paul Mathias wrote.  “… However, even if we assume that a physician has a duty to keep adequate records, whether Dr. Kleinman kept adequate records is a question of fact.”

Though Kleinman presented evidence via Miller’s affidavit that he kept sufficient records, and Henderson responded by designating the panel’s contrary conclusion, that factual dispute does not warrant reversal of summary judgment, Mathias wrote. Instead, the panel noted that Kleinman designated evidence to prove he met the applicable standard of care when operating on Henderson, but Henderson did not designate evidence to establish the opposite.

“We firmly believe that the presence or absence of medical records is certainly a factor in the determination of whether or not medical malpractice occurred in any case,” Mathias wrote. “However, in the face of an admissible affidavit from a competent expert opining that Dr. Kleinman’s care of Henderson was within the applicable standard of care notwithstanding his extremely poor recordkeeping … it is inadequate as a matter of law to respond solely by pointing only to the Panel’s finding that Dr. Kleinman’s recordkeeping failed to meet the applicable standard.”

The appellate panel’s opinion was unanimous, but Judge Edward Najam wrote separately to “emphasize the injustice caused by Dr. Kleinman’s failure to maintain adequate and accurate medical records… .”

“The inadequacy of those records is akin to the suppression of evidence and supports an inference that adequate medical records would have been against Dr. Kleinman’s interests,” Crone wrote. “As the majority observes, it would be reasonable to assert that a health care provider has an affirmative duty to maintain adequate and accurate records. Such a duty is wholly meaningless without a consequence for failure to comply.”

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