Wednesday, August 10, 2011
Ind. Decisions - Supreme Court decides one today
In Howard Regional Health System, et al. v. Jacob Gordon, et al. , a 17-page, 5-0 opinion (with J. Dickson concurring separately), Chief Justice Shepard writes:
Jacob Gordon‘s mother sued Howard Community Hospital, alleging it committed medical malpractice while caring for her son. In another count of the complaint, she sought separate damages for spoliation, saying the Hospital had lost certain medical records associated with Gordon‘s care and that this loss made it impossible for Gordon to pursue a medical malpractice claim against one of his doctors, who was also a defendant.ILB: Yesterday the COA issued an opinion in Kelley v. Patel (see ILB summary here - 3rd case). From the opinion:
As we explain below, many of the considerations that led us to decline to recognize first-party spoliation in Gribben v. Wal-Mart Stores, Inc., and to decline to recognize third-party spoliation in Glotzbach v. Froman in the context of workers‘ compensation, apply here. * * *
Whether the Gordons are entitled to any sanctions against the Hospital for the loss of records in question is an intensively fact-sensitive inquiry. In the current state of the proceeding, relatively little is known of record about the role of the missing evidence as respects the claims against the various defendants, how and when and by whom the records went missing, the nature and availability of other evidence that may bear on the Gordons‘ malpractice claims, and so on. In the course of further proceedings before the medical review panel and the trial court thereafter, a good deal more is likely to be learned about these facts and about whether a litigation sanction against the Hospital is warranted.
We reverse the judgment of the trial court.
Sullivan, Rucker, and David, JJ., concur.
Dickson, J., concurs in result with separate opinion.
The Estate raises one issue on appeal, which we restate as whether the Estate has an available third-party cause of action against Indiana Insurance for spoliation of evidence. Concluding that a cause of action is not available under the facts of this case, we affirm. * * *Footnote 7 of this COA opinion references the case decided today by the Supreme Court:
We do not hold that third-party spoliation claims could never be available against a liability insurer where death or serious injury resulted on the insured’s business premises. Yet, as the above discussion of Indiana cases illustrates, our courts recognize spoliation of evidence as an independent tort only in narrow circumstances where a relationship exists between the claimant and the third party sought to be held responsible for a failure to preserve evidence.
In Howard Reg’l Health Sys. v. Gordon, 925 N.E.2d 453 (Ind. Ct. App. 2010), trans. granted, 940 N.E.2d 823 (Ind. 2010), this court held that an independent tort of spoliation could be brought by a patient against the hospital that breached its statutory duty to preserve the patient’s medical records. That holding was vacated on transfer, and our supreme court has not yet issued an opinion.
Posted by Marcia Oddi on August 10, 2011 03:29 PM
Posted to Ind. Sup.Ct. Decisions