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Legal Report: Lost Evidence Loses Cases


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Legal Report: Lost Evidence Loses Cases

By Ellen Epstein Cohen, JD, Adler, Cohen, Harvey, Wakeman, Guekguezian, LLP

Related to: Ambulatory, Diagnosis, Cures Act: Opening Notes, Primary Care, Obstetrics, Other Specialties

Fetal monitor strips, family history forms, and other non-medical record documents need to be preserved.

Guest Commentator

  • Ellen Epstein Cohen, JD; Adler, Cohen, Harvey, Wakeman, Guekguezian, LLP; Boston, MA


When medical evidence from an adverse event or outcome is lost, the result can be fatal to a clinician’s legal defense. Defense attorney Ellen Epstein Cohen, of Adler, Cohen, Harvey, Wakeman and Guekguezian in Boston has more, in this month’s Legal Report.

Most physicians understand that they must not alter the medical record after the fact, especially in the context of an unanticipated bad outcome. But what happens when a critical piece of the medical evidence is lost and a lawsuit occurs?

This situation arises more than you would like to think, especially with items that are not traditionally maintained as part of the official medical record, including medical devices, films, monitor strips, and medical history forms. The loss of evidence can be fatal to the defense of a medical malpractice case.

Who last had the physical evidence in their hands has important legal ramifications. The legal theory that attempts to allocate blame for the party responsible for destroying or losing critical evidence, is called “Spoliation of Evidence.” The doctrine is based on the premise that a party who has negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results. The doctrine of spoliation permits the imposition of legal sanctions and remedies for the destruction or loss of evidence in civil litigation.

Judges have broad discretion to impose a variety of sanctions where spoliation has been proven. The sanction for spoliation can range from special instructions to the jury against the party responsible for losing or destroying the evidence—known as an “adverse inference instruction—to directing a verdict against them. When giving an adverse inference instruction, the Judge tells the jury they may infer and presume that the lost evidence had a harmful impact on the party responsible for its loss or destruction.

As you can imagine, this can have a powerful impact on the outcome of the case. Not only do you want to be able to prove who had the missing evidence in his or her hands last, you do not want to be the party responsible for the destruction or loss of any piece of evidence.

No matter what specialty, some forethought and care in the way that medical evidence is maintained can avert this problem.

For example, the electronic fetal monitor Strip is central to many obstetrical malpractice cases. A typical allegation is that the obstetrical team did not heed changes in the fetal heart pattern during labor, which should have alerted them to fetal distress. The strength of the defense usually lies in what the actual strips show. Often, the team makes handwritten notes on the original strip and this helps put into context what they saw on the strip. Without the original strip the defense can be seriously compromised. Sometimes (but not often) when the paper strip cannot be located, a computer generated copy of the data can be retrieved, but that version of the strip lacks the valuable notes written onto the original at the time of labor.

Most institutions do not consider the original Electronic Fetal Monitor Strip to be part of the official medical record, and it is not stored in the Medical Records Dept. How these strips are stored—whether they are signed out or tracked, and how long the originals are kept—varies greatly from institution to institution.

In the event of a bad obstetrical outcome, it would be wise to take steps to ensure that the original strip is sequestered and maintained by the hospital until the time within which a legal claim can be brought on behalf of the minor has lapsed. While it seems obvious that this should be done with strips from labor and delivery, it should also be done for those strips generated by Non-Stress Testing, whether performed the office or in the hospital.

In breast cancer litigation, the loss of the original films has been problematic (although less often since digital mammography). Often patients take their original films to their surgeon, or oncologist, and the result is that the radiologist loses access to those films. What happens when a defendant in a lawsuit tries to defend his or her radiologic interpretation and those original films cannot be located? While copies may exist, copies do not contain the same degree of detail and information on which the doctor relied when interpreting the original images.

Another key piece of evidence that often is not part of the official medical record are the History Forms completed by the Patient at the time of each mammogram. These forms can contain crucial information regarding whether the patient expressed any specific family or other history, or pointed out any worrisome area of either breast. Most radiology departments store these forms in the film jacket with the images; as a result, when the images leave the facility, so do these irreplaceable forms. At the very least, every radiology department should have a uniform and reliable method of maintaining a copy of the History Forms, tracking who took the films and on what date, whether they are supposed to be returned, and whether the originals or copies were taken.

If in the event of a bad outcome, if there is any question whether a medical device malfunctioned it is imperative that you take steps to ensure the device is identified and retained. This should be coordinated with hospital risk management or legal counsel.

Lost evidence can take a defensible case and destroy the ability to put forth an effective and credible defense. Simple steps to maintain not only the traditional medical record, but those important pieces of medical information stored separately from the chart, can go a long way in preserving a physician’s ability to defend his or her care.

For Resource, I’m Ellen Epstein Cohen.

March 1, 2008
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