Spoliation in a Medical Malpractice Case

By definition, spoliation refers to the “destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Bouve & Mohr, LLC v. Banks, 274 Ga. App. 758, 762 (2005). Spoliation in the context of a medical malpractice case can raise many issues for lawyers representing doctors and hospitals. These issues can often be overlooked until it is too late to repair the damage done.

While most attorneys have heard of the concept of spoliation and have a general or basic understanding of what it means, few appear to have had the opportunity or necessity of litigating the issue before a trial court or on appeal. Due to its less-than-pervasive appearance in litigation ' and more particularly in medical malpractice actions ' the subject needs some light thrown upon it. This article shows how medical malpractice attorneys need to “think outside the box” in their defense of their medical practitioner clients.

A Case to Ponder

Consider the following hypothetical: Dr. Smith is a pathologist in a community-based hospital. As has become routine in hospital settings, Dr. Smith's professional group maintains a contract with the hospital. The physicians are considered to be independent contractors at the hospital as opposed to being hospital employees.

Dr. Smith interprets a pathology sample on a patient as completely benign and signs out his report. A few years later, Dr. Smith is sued for wrongful death/medical malpractice and the plaintiff contends that Dr. Smith misread the pathology on his deceased spouse. As a result, he says, the spouse's cancer went undiagnosed and untreated.

Just months before Dr. Smith was served with the lawsuit, the paraffin wax “block” containing the remaining portions of un-reviewed tissue was discarded by employees of the hospital in accordance with a written retention policy. When suit was filed, the plaintiff requested the block from both the pathologist and the hospital (also a named defendant). Clearly neither could produce it.

Is There Spoliation and Who Is Responsible?

How does a court analyze whether spoliation occurred in the first place? As stated above, spoliation occurs when there is a destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. Clearly, the concept of “pending” litigation is self-explanatory. However, the concept of contemplated litigation necessarily involves a case-by-case analysis of facts. For example, in the case of Wal-Mart Stores, Inc. v. Lee, 290 Ga. App. 541 (2008), Wal-Mart was alleged to have spoliated videotape evidence that depicted surveillance of a Wal-Mart parking lot at the time when the plaintiff was shot. Once a suit was filed, the plaintiff learned that the footage had been destroyed. The plaintiff therefore moved for spoliation sanctions. Wal-Mart argued that it merely re-used the tape in its ordinary course of business and that it did not destroy the tape during litigation. In determining whether the tape had been destroyed in anticipation of litigation, the court seized upon the notion that the plaintiff's former attorney had sent Wal-Mart's CEO a pre-suit demand letter and found this fact sufficient to place Wal-Mart on notice of contemplated litigation. See also Gilmore v. SCI Texas Funeral Services, Inc., 234 S.W.3d 251 (Tex. App. 2007) (duty to avoid spoliation “arises only when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evidence in its possession or control will be material and relevant to that claim.”); Fuller Family Holdings, LLC v. Northern Trust Co., 371 Ill.App.3d 605 (Ill. App. 2007) (“a defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant's position should have foreseen that the evidence was material to a potential civil action.”); Robertson v. Dept. of Public Safety, 2005 WL 2364817(Ohio Ct. Cl. 2005) (“pending or probable litigation”). Simply stated, it is incumbent upon a plaintiff to place a defendant on notice that litigation is being contemplated.

Returning to our hypothetical, is there spoliation of the tissue block that was discarded in accordance with the hospital's policies? Absent additional information that would place the doctor and hospital on notice of a potential claim, the answer would seem to be a resounding “no.”

Let's change the hypothetical around to assume that the tissue block was spoliated. Who is responsible for the spoliation? Is it the doctor, the hospital, or both? This much more complicated question poses what could be the single largest puzzle for medical malpractice attorneys in the context of representing a hospital, a physician or a practice operating in a hospital setting. Without truly understanding the intricate division of labor between the hospital and the physician's group, what may seem to be an easy answer does not turn out the way expected. It is virtually impossible to determine where the responsibility lies for the spoliation without delving into the mundane terms and conditions in the agreement governing the relationship between the physician's group and the hospital. Unlike in other med-mal cases, intense scrutiny of the agreement is required in these situations, not just a focus on the medicine.

The Question of Responsibility

In answering the question of responsibility for the spoliated tissue block, it is important to look at the following: Does the agreement state who is the custodian of the tissue block? Do the physicians “own” anything in the laboratory? Who is responsible for the running or oversight of the pathology laboratory? Who is responsible for authoring and enforcing the rule regarding the discarding of tissue blocks? Do the physicians have the right to direct the activity of hospital employees? Each agreement is different, so this list is not meant to be exhaustive in terms of the questions the attorney must ask. But, ultimately, this factual inquiry will be resolved by a trial judge who will also be interpreting the facts surrounding the division of labor between the hospital and the physician's practice group. The attorneys for both sides must be prepared.

After the contractual interpretation of the agreement has been done, there is yet one more thought to consider. There is a line of case law authority that would impose responsibility for spoliation under an “agency” theory. Bouve & Mohr, LLC v. Banks, 274 Ga. App. 758, 762 (2005); see also Boswell v. Overhead Door Corp., 292 Ga. App. 234 (2008) (finding no spoliation sanctions against Overhead Door when City of Atlanta discarded door on its own and not at the request of Overhead Door). In Bouve & Mohr, a defendant was held liable for spoliation sanctions despite the fact that the defendant had no personal involvement in actually destroying evidence. More specifically, in a premises liability case, a plaintiff filed suit against an apartment complex following her alleged rape at the apartment complex. A police officer who acted as security for the apartment was assigned to the criminal rape case. Through a series of factual circumstances, the police officer disposed of the rape kit. The court found there to be circumstantial evidence of agency between the police officer and the apartment complex.

In applying the theory of agency to our hypothetical, it is important to be careful to investigate not only the contractual relationship between the hospital and the physician's practice, but also the actual day-to-day operation of the laboratory. If the physician directs or is consulted by laboratory personnel in reference to the storage or discarding of tissue blocks, the physician's group as well as the hospital could find themselves on the hook for spoliation. However, if the hospital employees are alone responsible for carrying out the discarding of the tissue blocks, the hospital is most likely solely responsible for the alleged spoliation.

The Consequences of Spoliation

In determining the appropriate remedy for spoliation, Georgia's courts, for example, review the following factors: “1) whether the [party seeking sanctions] was prejudiced as a result of the destruction of the evidence; 2) whether the prejudice could be cured; 3) the practical importance of the evidence; 4) whether the [party who destroyed the evidence] acted in good or bad faith; and 5) the potential for abuse.” R.A. Siegel Co. v. Bowen, 246 Ga. App. 177, 180 (2000). Other states generally look at the same general factors. See Joyner v. B&P Pest Control, Inc., 852 So. 991 (Ala. Civ. App. 2002); Whirlpool Corp. v. Camacho, 251 S.W.3d 88 (Tex. App. 2008). See also Barnett v. Simmons, 2008 WL 4853360 (Okla. 2008); Wilson v. Frye, 2008 WL 4561505 (Wash. App. Div. 2008) State v. Hay, 756 N.W.2d 480 (Iowa App. 2008); Happy Bunch, LLC v. Grandview North, LLC, 142 Wash. App. 81 (2007).

What Is the Remedy?

Assuming spoliation has occurred, what is the remedy? First and foremost, most attorneys are aware of the dreaded “adverse inference” charge. The jury can be charged that there is a rebuttable presumption that the lost or destroyed evidence contained information adverse to the spoliator. In the hypothetical identified above, the trial court could instruct the jury that the missing tissue block contained something harmful to the doctor's and the hospital's defense. This could result in the jury forming the impression or presumption that the tissue block contained evidence of malignancy. Simply the giving of an adverse inference charge in the hypothetical could have dire consequences and turn a seemingly defensible case into one that poses serious risks in being tried to verdict.

Even more so than the giving of the adverse inference charge, trial courts are vested with discretion to fashion even more damaging remedies for alleged spoliation. For example, a trial court could dismiss the case or could exclude testimony concerning the destroyed or lost evidence. See, e.g., R.A. Siegel Co. v. Bowen, 246 Ga. App. 177, 180 (2000); Covucci v. Keane Consulting Group, Inc., 21 Mass. L. Rptr. 228 (Mass. Super. 2006); Harborview Office Center, LLC v. Camosy Inc., 290 Wis.2d 511 (2006); Farr v. Evenflo Co., Inc., 287 Wis.2d 827 (Wis .App., 2005). Additionally, a trial court could even enter findings of fact pertaining to the lost or destroyed evidence, thus removing certain issues from consideration from the jury's purview. See, e.g., Bouve & Mohr, LLC v. Banks, 274 Ga. App. 758, 762 (2005) (where spoliated evidence was a rape kit performed on the plaintiff after the alleged rape, court entered a finding of fact that the plaintiff was raped in the apartment complex run by the defendant).

As you can see, depending on how a trial court perceives an alleged spoliation, the merits of the case could be vastly affected. Importantly, assuming a litigant wishes to appeal the entry of spoliation sanction, that decision is generally reviewed under the deferential abuse of discretion standard.

Conclusion

What is the lesson to be learned by the prudent medical malpractice attorney? First and foremost, it is not just about the medicine and the patient's medical record. When you are representing physicians or their practices in the setting of a community hospital, you must determine all the parties' involvements in the everyday operation of the physician's practice, and establish who is responsible for what. Once you have resolved this one very important fact, you will be in the best possible position to properly represent your client's interest and prevent the blunders that lead to a claim of spoliation. Even absent a claim of spoliation, this inquiry should occur as early as possible in litigation in order to determine which party will be responsible for preserving relevant evidence during suit. Absent such an early investigation, you could find your client on the receiving end of a motion for spoliation sanctions.

Finally, if you have a co-defendant, keep the lines of communication open in order to ensure that all relevant documentary evidence is being maintained and preserved, even if it's not your client's documents. This will help in avoiding the issues of who had the responsibility to preserve each item of relevant evidence during discovery.

Kim M. Ruder is Of Counsel with the Atlanta office of Carlock, Copeland & Stair, LLP. Her practice focuses on the defense of physicians in medical malpractice actions as well as other matters of general liability.

By definition, spoliation refers to the “destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Bouve & Mohr, LLC v. Banks , 274 Ga. App. 758, 762 (2005). Spoliation in the context of a medical malpractice case can raise many issues for lawyers representing doctors and hospitals. These issues can often be overlooked until it is too late to repair the damage done.

While most attorneys have heard of the concept of spoliation and have a general or basic understanding of what it means, few appear to have had the opportunity or necessity of litigating the issue before a trial court or on appeal. Due to its less-than-pervasive appearance in litigation ' and more particularly in medical malpractice actions ' the subject needs some light thrown upon it. This article shows how medical malpractice attorneys need to “think outside the box” in their defense of their medical practitioner clients.

A Case to Ponder

Consider the following hypothetical: Dr. Smith is a pathologist in a community-based hospital. As has become routine in hospital settings, Dr. Smith's professional group maintains a contract with the hospital. The physicians are considered to be independent contractors at the hospital as opposed to being hospital employees.

Dr. Smith interprets a pathology sample on a patient as completely benign and signs out his report. A few years later, Dr. Smith is sued for wrongful death/medical malpractice and the plaintiff contends that Dr. Smith misread the pathology on his deceased spouse. As a result, he says, the spouse's cancer went undiagnosed and untreated.

Just months before Dr. Smith was served with the lawsuit, the paraffin wax “block” containing the remaining portions of un-reviewed tissue was discarded by employees of the hospital in accordance with a written retention policy. When suit was filed, the plaintiff requested the block from both the pathologist and the hospital (also a named defendant). Clearly neither could produce it.

Is There Spoliation and Who Is Responsible?

How does a court analyze whether spoliation occurred in the first place? As stated above, spoliation occurs when there is a destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. Clearly, the concept of “pending” litigation is self-explanatory. However, the concept of contemplated litigation necessarily involves a case-by-case analysis of facts. For example, in the case of Wal-Mart Stores, Inc. v. Lee , 290 Ga. App. 541 (2008), Wal-Mart was alleged to have spoliated videotape evidence that depicted surveillance of a Wal-Mart parking lot at the time when the plaintiff was shot. Once a suit was filed, the plaintiff learned that the footage had been destroyed. The plaintiff therefore moved for spoliation sanctions. Wal-Mart argued that it merely re-used the tape in its ordinary course of business and that it did not destroy the tape during litigation. In determining whether the tape had been destroyed in anticipation of litigation, the court seized upon the notion that the plaintiff's former attorney had sent Wal-Mart's CEO a pre-suit demand letter and found this fact sufficient to place Wal-Mart on notice of contemplated litigation. S ee also Gilmore v. SCI Texas Funeral Services, Inc. , 234 S.W.3d 251 (Tex. App. 2007) (duty to avoid spoliation “arises only when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evidence in its possession or control will be material and relevant to that claim.”); Fuller Family Holdings, LLC v. Northern Trust Co. , 371 Ill.App.3d 605 (Ill. App. 2007) (“a defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant's position should have foreseen that the evidence was material to a potential civil action.”); Robertson v. Dept. of Public Safety, 2005 WL 2364817(Ohio Ct. Cl. 2005) (“pending or probable litigation”). Simply stated, it is incumbent upon a plaintiff to place a defendant on notice that litigation is being contemplated.

Returning to our hypothetical, is there spoliation of the tissue block that was discarded in accordance with the hospital's policies? Absent additional information that would place the doctor and hospital on notice of a potential claim, the answer would seem to be a resounding “no.”

Let's change the hypothetical around to assume that the tissue block was spoliated. Who is responsible for the spoliation? Is it the doctor, the hospital, or both? This much more complicated question poses what could be the single largest puzzle for medical malpractice attorneys in the context of representing a hospital, a physician or a practice operating in a hospital setting. Without truly understanding the intricate division of labor between the hospital and the physician's group, what may seem to be an easy answer does not turn out the way expected. It is virtually impossible to determine where the responsibility lies for the spoliation without delving into the mundane terms and conditions in the agreement governing the relationship between the physician's group and the hospital. Unlike in other med-mal cases, intense scrutiny of the agreement is required in these situations, not just a focus on the medicine.

The Question of Responsibility

In answering the question of responsibility for the spoliated tissue block, it is important to look at the following: Does the agreement state who is the custodian of the tissue block? Do the physicians “own” anything in the laboratory? Who is responsible for the running or oversight of the pathology laboratory? Who is responsible for authoring and enforcing the rule regarding the discarding of tissue blocks? Do the physicians have the right to direct the activity of hospital employees? Each agreement is different, so this list is not meant to be exhaustive in terms of the questions the attorney must ask. But, ultimately, this factual inquiry will be resolved by a trial judge who will also be interpreting the facts surrounding the division of labor between the hospital and the physician's practice group. The attorneys for both sides must be prepared.

After the contractual interpretation of the agreement has been done, there is yet one more thought to consider. There is a line of case law authority that would impose responsibility for spoliation under an “agency” theory. Bouve & Mohr, LLC v. Banks , 274 Ga. App. 758, 762 (2005); see also Boswell v. Overhead Door Corp. , 292 Ga. App. 234 (2008) (finding no spoliation sanctions against Overhead Door when City of Atlanta discarded door on its own and not at the request of Overhead Door). In Bouve & Mohr, a defendant was held liable for spoliation sanctions despite the fact that the defendant had no personal involvement in actually destroying evidence. More specifically, in a premises liability case, a plaintiff filed suit against an apartment complex following her alleged rape at the apartment complex. A police officer who acted as security for the apartment was assigned to the criminal rape case. Through a series of factual circumstances, the police officer disposed of the rape kit. The court found there to be circumstantial evidence of agency between the police officer and the apartment complex.

In applying the theory of agency to our hypothetical, it is important to be careful to investigate not only the contractual relationship between the hospital and the physician's practice, but also the actual day-to-day operation of the laboratory. If the physician directs or is consulted by laboratory personnel in reference to the storage or discarding of tissue blocks, the physician's group as well as the hospital could find themselves on the hook for spoliation. However, if the hospital employees are alone responsible for carrying out the discarding of the tissue blocks, the hospital is most likely solely responsible for the alleged spoliation.

The Consequences of Spoliation

In determining the appropriate remedy for spoliation, Georgia's courts, for example, review the following factors: “1) whether the [party seeking sanctions] was prejudiced as a result of the destruction of the evidence; 2) whether the prejudice could be cured; 3) the practical importance of the evidence; 4) whether the [party who destroyed the evidence] acted in good or bad faith; and 5) the potential for abuse.” R.A. Siegel Co. v. Bowen , 246 Ga. App. 177, 180 (2000). Other states generally look at the same general factors. See Joyner v. B&P Pest Control, Inc., 852 So. 991 (Ala. Civ. App. 2002); Whirlpool Corp. v. Camacho , 251 S.W.3d 88 (Tex. App. 2008). See also Barnett v. Simmons, 2008 WL 4853360 (Okla. 2008); Wilson v. Frye, 2008 WL 4561505 (Wash. App. Div. 2008) State v. Hay , 756 N.W.2d 480 (Iowa App. 2008); Happy Bunch, LLC v. Grandview North, LLC , 142 Wash. App. 81 (2007).

What Is the Remedy?

Assuming spoliation has occurred, what is the remedy? First and foremost, most attorneys are aware of the dreaded “adverse inference” charge. The jury can be charged that there is a rebuttable presumption that the lost or destroyed evidence contained information adverse to the spoliator. In the hypothetical identified above, the trial court could instruct the jury that the missing tissue block contained something harmful to the doctor's and the hospital's defense. This could result in the jury forming the impression or presumption that the tissue block contained evidence of malignancy. Simply the giving of an adverse inference charge in the hypothetical could have dire consequences and turn a seemingly defensible case into one that poses serious risks in being tried to verdict.

Even more so than the giving of the adverse inference charge, trial courts are vested with discretion to fashion even more damaging remedies for alleged spoliation. For example, a trial court could dismiss the case or could exclude testimony concerning the destroyed or lost evidence. See, e.g., R.A. Siegel Co. v. Bowen , 246 Ga. App. 177, 180 (2000); Covucci v. Keane Consulting Group, Inc ., 21 Mass. L. Rptr. 228 (Mass. Super. 2006); Harborview Office Center, LLC v. Camosy Inc. , 290 Wis.2d 511 (2006); Farr v. Evenflo Co., Inc. , 287 Wis.2d 827 (Wis .App., 2005). Additionally, a trial court could even enter findings of fact pertaining to the lost or destroyed evidence, thus removing certain issues from consideration from the jury's purview. See, e.g., Bouve & Mohr, LLC v. Banks , 274 Ga. App. 758, 762 (2005) (where spoliated evidence was a rape kit performed on the plaintiff after the alleged rape, court entered a finding of fact that the plaintiff was raped in the apartment complex run by the defendant).

As you can see, depending on how a trial court perceives an alleged spoliation, the merits of the case could be vastly affected. Importantly, assuming a litigant wishes to appeal the entry of spoliation sanction, that decision is generally reviewed under the deferential abuse of discretion standard.

Conclusion

What is the lesson to be learned by the prudent medical malpractice attorney? First and foremost, it is not just about the medicine and the patient's medical record. When you are representing physicians or their practices in the setting of a community hospital, you must determine all the parties' involvements in the everyday operation of the physician's practice, and establish who is responsible for what. Once you have resolved this one very important fact, you will be in the best possible position to properly represent your client's interest and prevent the blunders that lead to a claim of spoliation. Even absent a claim of spoliation, this inquiry should occur as early as possible in litigation in order to determine which party will be responsible for preserving relevant evidence during suit. Absent such an early investigation, you could find your client on the receiving end of a motion for spoliation sanctions.

Finally, if you have a co-defendant, keep the lines of communication open in order to ensure that all relevant documentary evidence is being maintained and preserved, even if it's not your client's documents. This will help in avoiding the issues of who had the responsibility to preserve each item of relevant evidence during discovery.

Kim M. Ruder is Of Counsel with the Atlanta office of Carlock, Copeland & Stair, LLP. Her practice focuses on the defense of physicians in medical malpractice actions as well as other matters of general liability.