Hang on to that evidence, even if it may be damaging

© 2009 The Medical-Legal News

By Dan Clifford, publisher

The Kentucky Supreme Court was asked in 1997 to create a new tort action for “spoliation of evidence.” It declined, but decided that proper jury instructions were enough when the issue of potentially “bad faith” destruction of records arose in litigation.
In a recent medical malpractice case, such a spoliation and jury instruction issue came up again and a jury was permitted to consider bad faith against a hospital over a lost incident report written by a nurse. The jury awarded $9 million, with almost $4 million for punitive damages.
The facts of the case were that a woman, Jennifer Beglin, with Crohn’s disease and with a history of bleeding problems underwent a proctectomy. No bleeding problems were anticipated for the current surgery, and doctors determined it would be unnecessary to type and cross-match Beglin’s blood. However, Beglin lost too much blood by halfway into the surgery. Delays in obtaining replacement blood followed, and Beglin suffered brain damage due to a lack of oxygen. She later died after life support was withdrawn. Various personnel involved in the surgery disputed what blood exactly was ordered, when and by whom.
A nurse was asked by her charge nurse to write an incident report about the matter, which may have contained a chronology of events, but the report was lost. The nurse said in a deposition that any such report would have included a chronology, but testified later at trial that it would not have. 
The hospital objected to jury instructions that permitted the jury to infer “bad faith” from the missing report. The appeals court agreed and said: “Absent some degree of bad faith, a… defendant is not entitled to an instruction that the jury may draw an adverse inference….”
However, the appeals court also said: “[The plaintiffs] argue… that the very nature of the incident report is such that the hospital would not want it available…. Regardless of whether the trial court was persuaded that the hospital acted in bad faith…, the court did not err by instructing the jury as it did. Simply put, the court left the decision as to whether the hospital acted in bad faith up to the jury.”
The case was University Medical Center v. Beglin, 2009 WL 102800 (Ky.App.). •