Spoliation of Evidence: The Lost Records Effect

A recent case illustrates the phenomenon of physical spoliation. In Liebig-Grigsby v. United States, 2003 U.S. Dist. LEXIS 3682 (N.D. Ill. 2003), the plaintiff, Susan Liebig-Grigsby, suffered from cervical myelopathy. She had good results from surgery on her spinal cord at the Hines Veterans Administration Hospital. Two years later, when she presented with symptoms indicating the need for further surgery, the VA doctors failed to refer her to a neurosurgeon, and her condition deteriorated severely. Her mobility and sensation were then substantially impaired. The plaintiff brought her two-count complaint for medical negligence against the United States under the Federal Tort Claims Act, 28 U.S.C. ' 1346 and '' 2671-2680. Following a bench trial, the court found in the plaintiff's favor, but reserved a final award of damages pending further information from the parties regarding plaintiff's projected future health care costs.

The first count of the complaint alleged that the Veteran's Administration staff failed to properly treat the plaintiff's progressive neurological dysfunction, resulting in loss of feeling and muscle ability in her legs and right arm. The second count alleged spoliation of evidence, specifically, the loss of two volumes of plaintiff's medical records, which precluded the defense's expert witness from rendering his analysis of the standard of care.

The pertinent facts of the case were these: The plaintiff was operated on at Hines Veterans Administration Hospital in 1995. She received follow-up treatment six times at Hines. In 1996, a physician from Hines' neurosurgical clinic noted that there had been “postoperative deterioration.” He recommended a new MRI scan, as well as an evaluation by a neurologist to “rule out neuropathy or myopathy [skeletal muscle disease].” The plaintiff could not identify the medical report detailing this visit, but among defendant's exhibits was a “progress note” about the plaintiff stating: “diagnosed post-op deterioration.” The court was unable to read the signature of the health care provider who wrote the note. (Illegibility is a serious problem in medical record analysis, and illegibility, in and of itself, violates JCAHO [Joint Commission on Accreditation of Healthcare Organizations] standards as well as hospital medical record standards. One may look upon illegibility as a form of content spoliation since poor handwriting interferes with the mandated flow of information from the medical record.)

Plaintiff saw neurologist John Wilson in August 1998, who noted that she had greater strength in her lower extremity. The plaintiff's expert witness, Dr. Jack Wilberger, determined these signs all indicated the 1995 surgery had been beneficial. The plaintiff could not point to a medical record documenting this visit with Dr. Wilson.

In 1997, plaintiff's condition showed signs of deterioration, to the point that her health was as bad as it had been preoperatively. She saw doctors at Westside Veterans Administration Hospital, but they failed to recommend surgery. Plaintiff became wheelchair-bound, and her condition at time of trial was expected to deteriorate further.

When the plaintiff originally filed her administrative claim with the VA, it was discovered that some of her medical records were missing. Dec. 30, 1999 letter from Earl E. Parsons, Staff Attorney, VA, to John Perconti, PI.'s Ex. 21. Id. at *7. Stephen Geist, a VA staff attorney, compiled the plaintiff's medical records in connection with her administrative claim, and found only seven of what he believed were nine volumes. Geist believed the missing records reflected plaintiff's treatment at Westside and Hines. The defendant did not explain how the records were lost, apart from Geist's unsupported hypothesis that plaintiff herself removed them.

The Medical Malpractice Count

The government maintained its expert testimony demonstrated that alternative methods of treatment were proper, so the choice by a physician of one method over another, even where injury resulted, was not a deviation from the standard of care. The court agreed this would have been an accurate statement of the law had the government's witness established that such alternative treatment methods were proper. But the court here found that the testimony of the government's witness, Dr. Richard Darren Penn, did not establish that there was an appropriate alternate treatment in this case: Dr. Penn himself admitted that because the records of plaintiff's neurosurgical treatment at Hines in 1997 were missing, it was impossible to determine whether the standard of care was violated. Without the benefit of those records, Penn could only hypothesize that surgery might not have been effective for plaintiff. Penn noted that a group of neurosurgeons would have a variety of ideas about how to treat the plaintiff, but he did not explain what those alternatives were, or their likely outcomes.

Most importantly, Dr. Penn conceded that he was unaware of a case similar to plaintiff's where a second surgery was not recommended. Further, it was undisputed that no neurosurgeon even evaluated the plaintiff for surgery based on the 1997 MRI findings, an evaluation which, according to plaintiff's expert Dr. Wilberger, was required under the standard of care. Id. at * 35, 36

It is worth noting that the absence of records did nothing to shore up the government's case. The government's own expert characterized the absence of these as deplorable, and testified candidly that the VA was negligent in its record keeping in this case. In any event, even without complete records, it was undisputed that plaintiff was not offered surgery by any of her doctors in 1997 or early 1998, and plaintiff showed that this would have been the appropriate medical treatment for her condition at that time.

The Spoliation Case

The plaintiff's second count alleged that the government negligently lost her medical records. To demonstrate negligent spoliation in Illinois, a plaintiff must show a duty to preserve records, a breach of that duty, an injury caused by that breach, and damages. Id. (citing Cosgrove v. Commonwealth Edison Co., 315 Ill.App.3d 651, 657, 734 N.E.2d 155, 161 (2nd Dist. 2000)).

In general, there is no duty to preserve evidence; however, such a duty may arise through an agreement, a contract, a statute, a “special circumstance,” or by affirmative conduct, the court stated at the beginning of its analysis. The court here assumed that VA medical staff had a duty to preserve plaintiff's medical records. To prevail on her spoliation claim, however, the plaintiff must show that the loss or destruction of evidence caused her to be unable to prove an underlying lawsuit. Id. (citing Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 196, 652 N.E.2d 267, 271 (1995). The court had already ruled in favor of the plaintiff on the negligence count, so it then dismissed the spoliation of evidence claim as moot.

The Strategic Use of Spoliation of Evidence

There are a few ways to use spoliation of evidence in settlement negotiations or at trial. At first blush, it may seem as if the most vigorous use would be to make a spoliation motion and to ask for an adverse inference: that whatever was in the lost records would have been unfavorable to the defense. This tactic may be very useful, but there is another way to approach this glaring deficit.

One principle in medical-record analysis is that the record must be accepted as true and accurate. Therefore, whatever is in the record is true and accurate, and whatever is not in the record is also true and accurate. This principle holds true in both physical and content spoliation cases, although where there is a record – albeit a false one – the approach is somewhat more laborious.

One of the most powerful defense tools is the doctor's inherent integrity: the “white coat” defense. Where there are bungled records, the doctor loses some of this inherent credibility. In such a case, proceed with your case, and at every possible turn, require all witnesses to refer to the missing records. The jury will eventually get the point. In this case, the illegibility will become a cause celebre. No attorney needs to mock doctors' handwriting. The tales are legion. The jurors will chuckle. But keep showing the exhibit and require the witnesses to struggle with the awful handwriting over and over again.

Conclusion

Where an expert witness is unable to express an opinion because there are missing records, frequent respectful returns in the questioning to that deficit will sketch out to the jury that the health care was deficient … as deficient as the records. Such understatement is a powerful advocacy sword.

There are two types of spoliation of evidence in medical negligence litigation: physical and content. Physical spoliation of evidence occurs where the tortfeasor physically destroys evidence or in some way makes the evidence unavailable. For example, there's the “shredder effect,” where the record is physically destroyed. Or the record can be left on the Risk Manager's desk until the day prior to trial. In either event, there is no physical record.

Content spoliation occurs when a health care provider places “spin” on the content of the medical record, creating an untruthful impression of the health care rendered. The general rule is that a provider must create a medical record that truthfully and accurately depicts the medical care rendered. See, Elliott B. Oppenheim, “The Medical Record As Evidence,” ' 4-8(a) (Lexis 1998) with cumulative Supplement 2003.

The Liebig-Grigsby Case

A recent case illustrates the phenomenon of physical spoliation. In Liebig-Grigsby v. United States, 2003 U.S. Dist. LEXIS 3682 (N.D. Ill. 2003), the plaintiff, Susan Liebig-Grigsby, suffered from cervical myelopathy. She had good results from surgery on her spinal cord at the Hines Veterans Administration Hospital. Two years later, when she presented with symptoms indicating the need for further surgery, the VA doctors failed to refer her to a neurosurgeon, and her condition deteriorated severely. Her mobility and sensation were then substantially impaired. The plaintiff brought her two-count complaint for medical negligence against the United States under the Federal Tort Claims Act, 28 U.S.C. ' 1346 and '' 2671-2680. Following a bench trial, the court found in the plaintiff's favor, but reserved a final award of damages pending further information from the parties regarding plaintiff's projected future health care costs.

The first count of the complaint alleged that the Veteran's Administration staff failed to properly treat the plaintiff's progressive neurological dysfunction, resulting in loss of feeling and muscle ability in her legs and right arm. The second count alleged spoliation of evidence, specifically, the loss of two volumes of plaintiff's medical records, which precluded the defense's expert witness from rendering his analysis of the standard of care.

The pertinent facts of the case were these: The plaintiff was operated on at Hines Veterans Administration Hospital in 1995. She received follow-up treatment six times at Hines. In 1996, a physician from Hines' neurosurgical clinic noted that there had been “postoperative deterioration.” He recommended a new MRI scan, as well as an evaluation by a neurologist to “rule out neuropathy or myopathy [skeletal muscle disease].” The plaintiff could not identify the medical report detailing this visit, but among defendant's exhibits was a “progress note” about the plaintiff stating: “diagnosed post-op deterioration.” The court was unable to read the signature of the health care provider who wrote the note. (Illegibility is a serious problem in medical record analysis, and illegibility, in and of itself, violates JCAHO [Joint Commission on Accreditation of Healthcare Organizations] standards as well as hospital medical record standards. One may look upon illegibility as a form of content spoliation since poor handwriting interferes with the mandated flow of information from the medical record.)

Plaintiff saw neurologist John Wilson in August 1998, who noted that she had greater strength in her lower extremity. The plaintiff's expert witness, Dr. Jack Wilberger, determined these signs all indicated the 1995 surgery had been beneficial. The plaintiff could not point to a medical record documenting this visit with Dr. Wilson.

In 1997, plaintiff's condition showed signs of deterioration, to the point that her health was as bad as it had been preoperatively. She saw doctors at Westside Veterans Administration Hospital, but they failed to recommend surgery. Plaintiff became wheelchair-bound, and her condition at time of trial was expected to deteriorate further.

When the plaintiff originally filed her administrative claim with the VA, it was discovered that some of her medical records were missing. Dec. 30, 1999 letter from Earl E. Parsons, Staff Attorney, VA, to John Perconti, PI.'s Ex. 21. Id. at *7. Stephen Geist, a VA staff attorney, compiled the plaintiff's medical records in connection with her administrative claim, and found only seven of what he believed were nine volumes. Geist believed the missing records reflected plaintiff's treatment at Westside and Hines. The defendant did not explain how the records were lost, apart from Geist's unsupported hypothesis that plaintiff herself removed them.

The Medical Malpractice Count

The government maintained its expert testimony demonstrated that alternative methods of treatment were proper, so the choice by a physician of one method over another, even where injury resulted, was not a deviation from the standard of care. The court agreed this would have been an accurate statement of the law had the government's witness established that such alternative treatment methods were proper. But the court here found that the testimony of the government's witness, Dr. Richard Darren Penn, did not establish that there was an appropriate alternate treatment in this case: Dr. Penn himself admitted that because the records of plaintiff's neurosurgical treatment at Hines in 1997 were missing, it was impossible to determine whether the standard of care was violated. Without the benefit of those records, Penn could only hypothesize that surgery might not have been effective for plaintiff. Penn noted that a group of neurosurgeons would have a variety of ideas about how to treat the plaintiff, but he did not explain what those alternatives were, or their likely outcomes.

Most importantly, Dr. Penn conceded that he was unaware of a case similar to plaintiff's where a second surgery was not recommended. Further, it was undisputed that no neurosurgeon even evaluated the plaintiff for surgery based on the 1997 MRI findings, an evaluation which, according to plaintiff's expert Dr. Wilberger, was required under the standard of care. Id. at * 35, 36

It is worth noting that the absence of records did nothing to shore up the government's case. The government's own expert characterized the absence of these as deplorable, and testified candidly that the VA was negligent in its record keeping in this case. In any event, even without complete records, it was undisputed that plaintiff was not offered surgery by any of her doctors in 1997 or early 1998, and plaintiff showed that this would have been the appropriate medical treatment for her condition at that time.

The Spoliation Case

The plaintiff's second count alleged that the government negligently lost her medical records. To demonstrate negligent spoliation in Illinois, a plaintiff must show a duty to preserve records, a breach of that duty, an injury caused by that breach, and damages. Id. (citing Cosgrove v. Commonwealth Edison Co. , 315 Ill.App.3d 651, 657, 734 N.E.2d 155, 161 (2nd Dist. 2000)).

In general, there is no duty to preserve evidence; however, such a duty may arise through an agreement, a contract, a statute, a “special circumstance,” or by affirmative conduct, the court stated at the beginning of its analysis. The court here assumed that VA medical staff had a duty to preserve plaintiff's medical records. To prevail on her spoliation claim, however, the plaintiff must show that the loss or destruction of evidence caused her to be unable to prove an underlying lawsuit. Id. (citing Boyd v. Travelers Ins. Co. , 166 Ill.2d 188, 196, 652 N.E.2d 267, 271 (1995). The court had already ruled in favor of the plaintiff on the negligence count, so it then dismissed the spoliation of evidence claim as moot.

The Strategic Use of Spoliation of Evidence

There are a few ways to use spoliation of evidence in settlement negotiations or at trial. At first blush, it may seem as if the most vigorous use would be to make a spoliation motion and to ask for an adverse inference: that whatever was in the lost records would have been unfavorable to the defense. This tactic may be very useful, but there is another way to approach this glaring deficit.

One principle in medical-record analysis is that the record must be accepted as true and accurate. Therefore, whatever is in the record is true and accurate, and whatever is not in the record is also true and accurate. This principle holds true in both physical and content spoliation cases, although where there is a record – albeit a false one – the approach is somewhat more laborious.

One of the most powerful defense tools is the doctor's inherent integrity: the “white coat” defense. Where there are bungled records, the doctor loses some of this inherent credibility. In such a case, proceed with your case, and at every possible turn, require all witnesses to refer to the missing records. The jury will eventually get the point. In this case, the illegibility will become a cause celebre. No attorney needs to mock doctors' handwriting. The tales are legion. The jurors will chuckle. But keep showing the exhibit and require the witnesses to struggle with the awful handwriting over and over again.

Conclusion

Where an expert witness is unable to express an opinion because there are missing records, frequent respectful returns in the questioning to that deficit will sketch out to the jury that the health care was deficient … as deficient as the records. Such understatement is a powerful advocacy sword.