Court: Medical record loss is negligence

If a hospital or provider loses records so that a patient can't pursue a medical malpractice case, the Indiana Court
of Appeals says state law allows that person to pursue a separate civil action for spoliation of evidence.

Applying 3-year-old precedent from the Indiana Supreme Court and additional guidance offered by the highest court in Illinois,
a three-judge appellate panel has determined a private cause of action is established under Indiana Code 16-39-7-1 about the
consequences of violating the state's medical record retention statute. The unanimous decision comes in Howard Regional Health System, et al. v. Jacob Z. Gordon b/n/f Lisa
Gordon, No. 34A02-0902-CV-179.

The case involves multiple disorders that Jacob Gordon suffers from that could have been caused by substandard medical care
at the time of his birth in 1999. His mother, Lisa, filed a medical malpractice action and asked for evidence from the hospital
where her son was born, but Howard Community Hospital responded 18 months later that some of the nurse's narrative notes,
labor records, and initial fetal data information couldn't be located. A neonatal doctor later determined he couldn't
provide an opinion about potential medical malpractice because of the missing evidence.

Gordon asked for partial summary judgment about whether the hospital had a duty to preserve the evidence, whether it breached
that duty, and whether that breach made it impossible to pursue a separate med mal action.

The Court of Appeals found the spoliation of evidence claim is outside the scope of the state's Medical Malpractice Act
and the trial court had jurisdiction to hear the case. The panel relied on H.D. v. BHC Meadows Hosp. Inc., 884 N.E.2d
849 (Ind. Ct. App. 2008), that determined a health-care provider's negligent or reckless dissemination of a patient's
confidential information to the general public wasn't within the boundaries of the Medical Malpractice Act.

On the availability of a private right of action for loss of medical records, the appellate panel held that a hospital is
required by Indiana Code § 16-39-7-1 to maintain its health records for seven years and if a hospital violates that statute,
it commits negligence per se and a private action is available.

Relying largely on the Indiana Supreme Court decision of Kho v. Pennington, 875 N.E. 2d 208 (Ind. 2007), the appellate
panel determined violating the statute creates a private cause of action and rejected the hospital argument about an administrative
disciplinary remedy preventing the separate claim.

"It is apparent in the case before us that the statutory sanctions involving 'the provider's licensure, registration,
or certification' … would similarly be 'wholly ineffectual' to remedy the harm Gordon would suffer if the loss
of records made it impossible to bring a malpractice action," Judge Melissa May wrote, citing a similar Illinois Supreme
Court ruling from 1992.

Aside from those issues, the Court of Appeals also addressed the availability of third-party spoliation claims and that summary
judgment was appropriate in this case because Gordon had established that the record loss was the proximate cause of the harm
alleged.

Indianapolis attorney John Muller with Montross Miller Muller Mendelson & Kennedy said he was pleased with the decision
for his client, while Indianapolis attorney Bryan Babb representing the hospital said a transfer petition to the Indiana Supreme
Court will likely be filed in the case.