Malpratice Consult: When Medical Records Are Inadvertently Lost
Johnson, Lee J., Medical Economics
QA patient suing me for malpractice has added a separate allegation for "spoliation of evidence." Some of my office records and X-rays were destroyed in a fire. The patient claims that, without this lost evidence, she can't win her malpractice suit. It's not that unusual for records to be innocently misplaced or destroyed, is it? Does the patient have a legitimate claim?
A Many judges would say Yes. Whether or not the court allows a separate claim, lost evidence almost always helps the plaintiff. If a defendant doctor loses a record or test result relevant to the case, the court can-and often will-tell jurors that they may conclude the missing document contained information favorable to the plaintiff. When judges don't do this, you can be sure the patient's attorney will.
Take the case of a child born with cerebral palsy. Was the condition caused by a congenital abnormality, or by hypoxia at the time of delivery? The fetalmonitoring strip is usually the key piece of evidence. If it's lost, jurors may well suspect that the doctor intentionally got rid of it.
Some courts, however, have held that the fact that fetal-monitoring strips were missing didn't warrant the presumption that this evidence would have been unfavorable to the defendant. Still, once a fetal problem becomes evident, the doctor should instruct the nursing staff to take special care to preserve the strip.
Another example involves a physician sued by a patient who'd fractured his leg. An X-ray showed good union, and the doctor removed the cast. The patient then refractured the same bone and sued the doctor for removing the cast too soon. The doctor suspected that the patient had exercised too hard or ignored instructions about limited weight-bearing. The X-ray would justify the doctor's defense.
However, the patient had obtained all his X-rays to take to his new physician. When that doctor sent them back, the crucial X-ray was missing. That physician said he'd never received it, and the patient claimed ignorance as to its whereabouts. Without the X-ray to back up his position, the first doctor had to settle the case.
That outcome could have been avoided. If a patient requests his X-rays, provide copies, not the original films. Make an index of all X-rays and radiology reports for each patient, and log them by date, view, and what they reveal. Never turn over documents without getting a receipt. If possible, transfer records directly from doctor to doctor; don't use the patient as a messenger.
If a patient insists on receiving the original film, make a notation in his record, have a copy of the film made for your files, retain the radiologist's report, and have the patient sign a release stating that he's taking the original. …