Destruction of records not always a sign of guilt or spoliation

by • January 1, 2009 • UncategorizedComments Off on Destruction of records not always a sign of guilt or spoliation1644

© 2009 The Medical-Legal News 

By Dan Clifford, publisher

• The Gist: As we move to electronic medical records, more issues of spoliation may arise. Here, the court was satisfied that the hospital had acceptable records retention.

A woman who gave birth to a neurologically-impaired child sued a hospital, its nurses and two doctors involved in the birth. The woman lost her claim at the trial level, as the jury found no negligence, and the woman appealed. She claimed, among other things, that the hospital allowed medical records to “spoil” when it permitted digital copies to be made and the originals destroyed.
The court sided with the defendant hospital, as the way the hospital kept it records was 1) evidently part of its standard policy and 2) the plaintiff could not show any guilt-implying inference in the way the hospital handled its records.
The appeals court said: “…Chobanian [the plaintiff] argues that the trial court erred in refusing to allow the jury to hear evidence relevant to spoliation based on destroyed original copies and late entries and alterations in the medical records.”
The court noted that destruction of medical records, or “spoliation of evidence,” sometimes may be communicated to a jury to permit it to draw an inference that the “destroyed evidence would have been unfavorable to the party that destroyed it.”
Allowing a jury to assume that the alteration or destruction of records equates to a cover-up can sometimes be awarded as a sanction against one party in a lawsuit.
However, the court goes on to effectively defend the hospital in its record-keeping: “Chobanian argues that she learned during the course of the trial that the original paper labor and delivery chart, the newborn chart and a printout of the fetal monitor from labor were destroyed. She also argues that there were late entries in the chart and alterations in the chart that warranted a spoliation instruction.”
“Meriter [the hospital] responds that the original paper charts were destroyed in the normal course of business, but only after copies had been provided to Chobanian and they had been stored on microfilm or compact disk. It also responds that the printout from the fetal monitor was not retained but the entire fetal monitor tracing was stored and then a complete printout was provided to Chobanian.”
“Finally, Meriter points out that late entries and alterations in the record were discussed at trial and are normal in the course of labor and delivery, and that Chobanian has not explained the significance of any destruction of or alterations in the records.”
“In her reply brief, Chobanian does not refute Meriter’s spoliation arguments, only reiterating that she did not learn of the destruction of materials until trial. Again, we will take this as a concession that Chobanian did receive all the medical records in some form and had an opportunity to address any alterations to the record.”
“Thus, we conclude that the trial court properly exercised its discretion in refusing to give a spoliation instruction.”
In the case, Chobanian v. Meriter, 2008 WL 4426747 (Wis. App.), the appeals court did not really reach the issue of whether the hospital is completely free to digitize records and destroy the originals with impunity, as the plaintiff did not address the issue early enough, but the court seemed quite satisfied that the records were properly handled in this instance. 

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