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How spoliation of evidence can cost you in court


As a practicing urologist, it is in your best interest to understand what a spoliation charge means in the state where you practice and the requirements of proof.

Brianne Goodwin, RNAlthough the legal definition and requirements for proving spoliation of evidence vary across all 50 states, spoliation can generally be defined as the destruction, loss, or disposal of evidence that is relevant to litigation. In the context of a medical malpractice action, this evidence might be medical records, billing records, email correspondence, or medical device documentation. Spoliation of evidence is a serious issue as it has the potential to turn a highly defensible case into one that, perhaps, should be settled because the operation of law would seriously hamper defense of the case.

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Two recent judicial decisions highlight why spoliation might be claimed in a case, how it is proven, and how state law varies in applying it. As a practicing urologist, it is in your best interest to understand what a spoliation charge means in the state where you practice and the requirements of proof.

Case 1: Records destroyed

In a 2014 New York case, the plaintiff sued the defendant urologist for failure to timely and properly diagnose and treat the decedent for prostate cancer, causing the decedent to develop multiple blastic osseous metastatic lesions throughout the thoracolumbar spine and pelvis, resulting in his death in 2010.

With regard to spoliation, the plaintiff sought to have the defendant urologist’s entire answer stricken and testimony at trial precluded as a sanction for the alleged spoliation of critical medical records while the plaintiff was a patient at the urology office from 1997 to 2007. The defendant urologist argued that the 10 years of medical records had been destroyed in a flood in 2010 when melting snow and ice damaged the basement in which they were kept. However, the urologist was unable to produce any evidence of an insurance claim related to the flood, repair work that was needed, or any other proof showing that a flood occurred.  

The plaintiff produced an expert at trial who testified that the urologist’s medical and billing records from 1997-2007 had not been properly maintained, and further, that they were critical pieces of evidence in the litigation.

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The Court found for the plaintiff with regard to the allegation of spoliation, highlighting the law in New York: “Under New York law, spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence… before the adversary had an opportunity to inspect them.” Here, the Court found no intentional conduct, but did find that the defendant’s medical records were negligently maintained, which allowed them to become destroyed. In turn, the defendant urologist’s answer was stricken, and the defense was precluded from testifying at trial on the issues of negligence, liability, informed consent, and causation relative to any care and treatment provided to the plaintiff prior to Aug. 1, 2008.

Next - Case 2: Spoliation not found


Case 2: Spoliation not found

In a 2015 Georgia case, the plaintiff sued the defendant urologist for negligence in treating his enlarged prostate with transurethral microwave therapy that resulted in a rectal-urethral fistula (Hand v. South Georgia Urology, PC., A14A1854). During discovery, the urologist was deposed. At his deposition, he testified that he believed the microwave therapy device malfunctioned during treatment, causing burns to the plaintiff’s tissue. He attempted using the device one or two other times after the plaintiff’s procedure, but claimed the device did not work properly. After learning of the plaintiff’s injury, he testified that he stopped using the device altogether.

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A jury trial commenced and the jury found for the defendant urologist. The plaintiff appealed on three separate grounds, one of them being spoliation. The plaintiff alleged that the microwave therapy device that was produced in the courtroom for trial was not the actual device that was used to treat the plaintiff, and as such, the actual device was unavailable for plaintiff’s inspection. Testimony revealed that approximately 3 months after the plaintiff’s procedure, the manufacturer of the device retrieved the device from the urology office and replaced it with the device present at trial.

The Court did not agree with the plaintiff’s argument, citing Georgia law as follows: “The Supreme Court of Georgia has held that spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation… however, notice of potential liability is not the same as notice of potential litigation. The injured party must show that the alleged tortfeasor was put on notice that the party was contemplating litigation.”

Given that the device was replaced approximately 3 months after the injury occurred in 2006, and the plaintiff did not file a complaint until 2008, the evidence did not support a claim of spoliation under Georgia law. In Georgia, the simple fact that someone is injured is not sufficient notice of contemplated litigation that would trigger the rules of spoliation.

Take-home message

State law varies considerably with regard to the spoliation of evidence. Some states require intentional conduct with bad faith or a desire to suppress the truth. Others will find spoliation where there is prejudice to the opposing party and negligent spoliation of evidence. Some states define a time period such as being “on notice of potential litigation,” whereas litigants in other states and federal court will be subject to the broader construct of, “where a party reasonably anticipates litigation or should have known that the evidence may be relevant to future litigation.”

It is recommended that physicians are familiar with the requirements of spoliation law in the state where they practice as it may aid in developing of policy or procedure within the office setting of handling and preserving records, devices, and any other physical evidence that might be called upon in the setting of litigation.

More on malpractice:

How continuous treatment rules can make lawsuits thrive

Could necrotizing fasciitis have been diagnosed sooner?

How to avoid malpractice suits related to APPs

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