The Indiana Court of Appeals decision in Howard Regional Health System d/b/a Howard Community Hospital, Charles G. Marler, M.D., and Community Family Health Center v. Jacob Z. Gordon b/n/f Lisa Gordon gives even more incentive for health care providers to protect patients’ medical records. Failure to maintain a patient’s medical record for at least seven years or during a medical malpractice lawsuit could be costly to health care providers in more ways than one.
In Howard Regional, a young boy suffers from multiple disorders that could have been caused by substandard medical care at the time of his birth in 1999. The boy’s mother filed a medical malpractice action and asked the hospital to produce evidence relating to the boy’s care. Eighteen (18) months later the hospital responded with an affidavit stating some of the medical records (including narrative notes, labor flow records, peri-operative nurses’ notes and fetal heart monitor strips) could not be located. A neonatal doctor later determined that he couldn’t provide an opinion about potential medical malpractice on behalf of the boy and his mother because of this missing evidence.
Indiana Code § 16-39-7-1, requires health care providers to maintain medical records for a minimum of seven years. A provider violating this statute commits an offense for which a board may impose disciplinary sanctions against the provider under the law that governs the provider’s licensure, registration or certification. In Howard Regional, the Indiana Court of Appeals found a violation of this statute also to be negligence per se (negligence established as a matter of law) and therefore a private civil cause of action for the patient. The Court rejected an argument by the hospital that the disciplinary sanctions contained in the statute prevented a private right of action by the patient because the Court of Appeals believed those sanctions would be “wholly ineffectual” to remedy the harm the patient suffered by not being able to bring a medical malpractice lawsuit since the records had been lost.
The Howard Regional opinion also created a third-party spoliation claim for the patient against the hospital. “Third-party spoliation” refers to the negligent or intentional destruction or discarding of evidence that is relevant to a tort action. Typically the evidence is destroyed or discarded by a person or entity not involved in the lawsuit. In Howard Regional, the Court of Appeals determined it was permissible for the patient to maintain an action against the hospital for third party spoliation of evidence even though the hospital was a party to the lawsuit because the hospital lost evidence the patient needed in order to pursue an action against her obstetrician. The Court again relied on the fact that the hospital had a duty to retain the evidence that was lost in reaching its decision on this issue.
What may be even more concerning than the private cause of action that this opinion establishes is that the patient’s claim for spoliation of evidence was unrelated to “the promotion of a patient’s health or the provider’s exercise of professional expertise, skill or judgment” and therefore outside the Indiana Medical Malpractice Act. As a result, the Malpractice Act’s caps on damages would not apply leaving a health care provider vulnerable to damages that have no limitations. The Court even noted that damages in third party spoliation claims are difficult and highly speculative because the jury is asked to determine what the damages would have been had the evidence been produced.
Due to the uncertainty of damages a health care provider may face if liable to a patient on a third party spoliation claim, we would encourage each of you to review your policies and practices to ensure you are in compliance in maintaining patients’ medical records for at least seven years and are able to locate all parts of the patients’ files. Please contact the Employment Law attorneys at Bamberger if you’d like to discuss your policies and procedures in more detail.
Author: Chad M. Smith (bio)
Phone: 812.452.3597
email: csmith@bamberger.com
Tags: Chad M. Smith, destruction of evidence, malpractice lawsuit, medical records, seven years, third-party spoliation