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    How spoliation of evidence can cost you in court

    Evidence that’s lost or destroyed can turn highly defensible cases into settlements

    Brianne Goodwin, RNBrianne Goodwin, RNAlthough the legal definition and requirements for proving spoliation of evidence vary across all 50 states, spoliation can generally be defined as the destruction, loss, or disposal of evidence that is relevant to litigation. In the context of a medical malpractice action, this evidence might be medical records, billing records, email correspondence, or medical device documentation. Spoliation of evidence is a serious issue as it has the potential to turn a highly defensible case into one that, perhaps, should be settled because the operation of law would seriously hamper defense of the case.

    Read: Did on-call’s refusal to provide consult lead to loss of testicle?

    Two recent judicial decisions highlight why spoliation might be claimed in a case, how it is proven, and how state law varies in applying it. As a practicing urologist, it is in your best interest to understand what a spoliation charge means in the state where you practice and the requirements of proof.

    Case 1: Records destroyed

    In a 2014 New York case, the plaintiff sued the defendant urologist for failure to timely and properly diagnose and treat the decedent for prostate cancer, causing the decedent to develop multiple blastic osseous metastatic lesions throughout the thoracolumbar spine and pelvis, resulting in his death in 2010.

    With regard to spoliation, the plaintiff sought to have the defendant urologist’s entire answer stricken and testimony at trial precluded as a sanction for the alleged spoliation of critical medical records while the plaintiff was a patient at the urology office from 1997 to 2007. The defendant urologist argued that the 10 years of medical records had been destroyed in a flood in 2010 when melting snow and ice damaged the basement in which they were kept. However, the urologist was unable to produce any evidence of an insurance claim related to the flood, repair work that was needed, or any other proof showing that a flood occurred.  

    The plaintiff produced an expert at trial who testified that the urologist’s medical and billing records from 1997-2007 had not been properly maintained, and further, that they were critical pieces of evidence in the litigation.

    Also see - Offensive disclosure and defensive medicine: What you need to know

    The Court found for the plaintiff with regard to the allegation of spoliation, highlighting the law in New York: “Under New York law, spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence… before the adversary had an opportunity to inspect them.” Here, the Court found no intentional conduct, but did find that the defendant’s medical records were negligently maintained, which allowed them to become destroyed. In turn, the defendant urologist’s answer was stricken, and the defense was precluded from testifying at trial on the issues of negligence, liability, informed consent, and causation relative to any care and treatment provided to the plaintiff prior to Aug. 1, 2008.

    Next - Case 2: Spoliation not found

    Brianne Goodwin, JD, RN
    Ms. Goodwin is manager of clinical risk and patient safety at Cambridge Health Alliance, Cambridge, MA.

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    • Anonymous
      hmmm... does this mean we should not bleach the hard-drives of our EMR or hammer our blackberries if we have evidence on them?