COA allows spoliation claim to proceed

The Indiana Court of Appeals has struck down a claim for a private right of action raised under Indiana’s medical record production statute, but allowed a spoliation claim against a doctor who no longer possesses a patient’s medical records to proceed. However, two judges urged the Indiana Supreme Court to reconsider a 1991 opinion that required them to strike the private right of action claim.

In Mary (Jones) Shirey v. Rex Flenar, M.D., 02A03-1704-MI-876, Mary Shirey was injured in a car accident in March 2013 and sought treatment from Dr. Rex Flenar. Shirey filed a complaint against Flenar in August 2016, alleging her attorney had requested her medical records and bills multiple times over the course of three years, but Flenar never responded.

In her complaint, Shirey alleged that Flenar had violated Indiana Code section 16-39-1-1(c), the record production statute requiring doctors to supply records when a patient requests them, or that he might not be in possession of the records at all. The second allegation was based on Flenar’s indication that his medical records software provider had destroyed the records without his knowledge.

Flenar filed for summary judgment, but Shirey argued she had a private right of action against Flenar for violation of the record production statute. Additionally, she asserted a claim for spoliation of evidence because without her records, she was unable to completely document her claim for damages related to the car accident.

The Allen Superior Court granted Flenar’s summary judgment motion, so Shirey appealed on both the statutory and spoliation claim. The Indiana Court of Appeals partially upheld the grant of summary judgment to Flenar, with Chief Judge Nancy Vaidik writing first on Thursday that the General Assembly did not intend to confer a private right of action through the statute.

Specifically, Vaidik said the omission of clear language indicating such a right is evidence the Legislature did not intend to create a private remedy, especially considering Title 16 allows the state Health Department to enforce the title. Further, finding a private right of action in the record production statute would be at odds with the Supreme Court’s interpretation of the record retention statute in Howard Regional Health System v. Gordon, 952 N.E.2d 182 (Ind. 2011), she said.

However, the appellate overturned the grant of summary judgment on Shirey’s spoliation claim, holding that under all three factors in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), Flenar had a duty to preserve Shirey’s medical records. Thus, the spoliation claim was remanded and allowed to proceed.

Though all judges concurred, judges John Baker and Terry Crone each wrote separately that they concurred with dissatisfaction and reluctance as to the issue of a private right of action under the record production statute. Both judges took issue with the Supreme court’s ruling in Gordon, with Baker writing there are no consequences if a doctor loses patients’ records under the holding in that case.

“To tell the citizens of this State that their physicians are required to maintain their medical records, but that there is no consequence for a failure to do so – even when that failure results in financial or health-related consequences to patients – is to make the requirement wholly meaningless,” Baker wrote. “I encourage our Supreme Court to reconsider the Gordon holding.”