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Spoliation of Evidence: The Lost Records Effect

By Elliott B. Oppenheim

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.

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