Medical liability litigant can't sue separately for lost medical records

Indiana's high court said the issue of health records maintenance should be considered in the same suit alleging medical negligence.

By — Posted Sept. 12, 2011

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An Indiana Supreme Court ruling protects physicians and hospitals from additional liability for lost medical records.

Health records maintenance is considered the practice of medicine, and plaintiffs suing for medical negligence cannot bring a separate action over the loss of the documents, the high court said in an Aug. 10 opinion. Such claims would be considered with the liability lawsuit.

The ruling was sparked by a medical negligence lawsuit Lisa Gordon filed against Howard Regional Health System in Kokomo, Ind., and two physicians after her son, Jacob, experienced neurological disorders after his emergency cesarean birth in 1999. Gordon sought separate damages against the hospital for losing certain medical records related to her son's care, alleging that the loss of evidence made it impossible for her to pursue a liability case against Jacob's obstetrician.

But the court concluded that such claims fall under the state's Medical Malpractice Act, which requires a plaintiff to first submit the merits of a case to a medical review panel before the case can go forward.

"The Gordons rightly acknowledge how important health care records are for the nature and quality of the health care provided," Chief Justice Randall T. Shepard wrote. "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."

The decision is significant, because it shields Indiana physicians from excess liability for the loss of medical records. It also ensures that those covered by a medical liability insurance pool established under the Malpractice Act will retain the protection of the state's damages limit in the event of such claims, said Bryan H. Babb, of Indianapolis, an attorney who represented the hospital and doctors in the case.

Patients still have recourse against lost evidence through court sanctions, which can be substantial, Babb said. Those can range from instructions allowing a jury to presume the lost evidence was unfavorable to a default judgment in the case.

"You could lose. And the last thing any health care provider wants is to be put in these situations," Babb said. "But [plaintiffs] still have an obligation to go out and build a case. ... There is other evidence out there to be mined" beyond the medical record.

Plaintiff attorneys question ruling

But some plaintiff attorneys say the ruling discourages accountability and ignores the separate duty physicians and hospitals have under a state law requiring them to maintain medical records.

Gordon's attorney declined comment for this article, citing the pending litigation. But Gordon argued in court briefs that a separate action over the lost evidence "is the only remedy available to [her and her son] and is necessary to insure the integrity of the litigation process and prevent the destruction of evidence."

The medical records issue is unrelated to quality of care and instead concerns whether the hospital breached its duty to retain the boy's records, Gordon argued.

Howard Regional turned over Jacob's files during discovery from 2003 to 2005 but disclosed that the record was incomplete. Among the missing documents were nursing notes, labor flow records and fetal monitoring strips from the time of the birth.

Gordon alleged that the files were removed deliberately. The hospital and physicians deny any wrongdoing regarding the boy's treatment and any intentional misconduct regarding the lost records.

A physician expert for the plaintiffs who reviewed Gordon's case concluded that she could not determine whether the standard of care was met because of the missing information.

Two lower courts found Howard Regional liable for failing to provide documentation of the early morning hours when Gordon went into labor until the surgery, saying the hospital "created a significant gap in the records" needed to evaluate the standard of care.

"It is reasonably foreseeable that a patient could be harmed by a provider's failure to maintain the patient's records," the appeals court said. Barring such claims "would leave an unscrupulous health care provider or insurer with no disincentive to destroy evidence that could later subject it to civil liability."

But the Supreme Court said Indiana law requiring health care entities to keep records for a certain period of time does not give patients a private right of action, noting that a failure to follow the law carries disciplinary action. Nor does Indiana case law recognize a separate claim against the hospital for failing to preserve evidence the Gordons hoped to use against another party. Court sanctions are an adequate remedy, justices said.

Whether Gordon is entitled to such penalties against Howard Regional will be determined as the negligence case proceeds to a medical review panel and trial, the high court said. It remains unclear whether Gordon will pursue a case against the obstetrician.

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