This blog has previously touched on importance of accurately documenting an Electronic Medical Record [EMR]. Document, Document, Document – Accurately! – Lamson Dugan & Murray LLP (ldmlaw.com). As the post explained, the “slightest discrepancy or ambiguity may result in protracted litigation.” But what happens when certain documents are deleted or are removed from the electronic medical record before or during litigation? This action may invoke a legal doctrine called spoliation.
Spoliation refers to “the intentional destruction of or the failure to produce documents or physical evidence relevant to the proof of an issue in a legal proceeding.” Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001). If party proves that the other opposing party had possession of relevant documents and intentionally destroyed them, that party is entitled to a spoliation inference. A spoliation inference typically comes in the form of a jury instruction, whereby the jury is instructed that it may make an inference that the document that was destroyed contained harmful information to the party who destroyed it. For example, if a document regarding a patient’s care was intentionally deleted, Plaintiff’s counsel may argue to the court and jury that the document provided critical evidence of malpractice.
LDM recently defended an Iowa hospital in a $34 million-dollar medical malpractice claim in which a claim of spoliation was made. Plaintiffs’ counsel argued that certain documents were intentionally deleted from the EMR, which entitled them to a spoliation inference. LDM argued that the deleted document was not relevant to the litigation, was deleted as part of a routine procedure or habit rather than as an intentional deletion, and was deleted well ahead of litigation. Although the Court instructed the jury they could draw a negative inference from the deleted documents, the jury ultimately wasn’t convinced by Plaintiffs’ arguments and sided with LDM attorneys Rick Harris and Michael L. Story in a successful defense verdict for the Iowa hospital. Rick Harris and Michael L. Storey Obtained Defense Verdict for Iowa Hospital – Lamson Dugan & Murray LLP (ldmlaw.com).
The verdict in this Iowa case was a positive one for the providers, but providers should nonetheless be very careful about what they delete from a patient’s EMR. The deletion of a document without sufficient explanation or justification could result in protracted litigation and provide jurors with an unfavorable instruction for medical providers.