On April 16, 2010, in Howard Regional Health System d/b/a Howard Community Hospital, et al. v. Jacob Z. Gordon b/n/f Lisa Gordon , the Indiana Court of Appeals issued an opinion holding Howard Community Hospital (“Howard Community”) liable for losing medical records and thereby making it impossible for a patient to pursue a medical malpractice case against an obstetrician.  Jacob Gordon suffers from various medical complications that could have been caused by breaches in the standard of care when he was born.  Following his birth and after having an attorney review the case, Jacob’s mother filed a medical malpractice claim against Howard Community, the Community Family Health Center, and the obstetrician who delivered Jacob.  After she filed suit, Jacob’s mother requested certain medical records from Howard Community.  Howard Community responded that it had lost some of the records from Jacob’s birth.  A trial court entered partial summary judgment in favor of Jacob’s mother, finding that Howard Community had a duty to preserve the medical records, that it breached the duty, and that the breach made it impossible for Jacob’s mother to pursue the medical malpractice case against the obstetrician.  The Indiana Court of Appeals affirmed the trial court’s decision.

This case concludes that a patient can have an independent third party “spoliation” claim against a health care provider for losing medical records.  Significantly, the claim is outside the Indiana Medical Malpractice Act and does not need to be reviewed by a medical review panel prior to being heard in state court.  In this case, the Court found that a hospital is required by Indiana statute to maintain medical records and if the hospital violates that statute, it commits negligence per se, making an independent spoliation claim available to the patient.

The Court found that summary judgment was appropriate because Gordon’s mother had established that the record loss was the proximate cause of making it impossible for her to pursue the case against the obstetrician.  Counsel for the hospital has indicated that a transfer petition to the Indiana Supreme Court will likely be filed.

via HIT Blawg: Discovery – Spoliation of Evidence Charged Against Hospital for Loss of Records.