Spoliation is the term that is applied when a piece of important evidence is destroyed or altered in such a way as to impair the ability to prove or disprove an issue in a lawsuit. Depending upon whether it is done intentionally or by accident, the ramifications of destruction of evidence can vary, but none of them are good. Evidence in a hospital setting usually means records, but can also apply to a medical device, pathology samples, a wheelchair or hospital bed, imaging studies or security video.Before any liability can attach to the destruction or alteration of evidence, there must first be a duty to preserve it. This is automatic with regard to medical records, since there is a statutory duty to maintain them. But a duty can also arise if there is a reasonable expectation that a lawsuit may result from an incident, an accident or even the failure of a medical device. While in general there needs to be litigation for spoliation to apply, some courts have found it where the circumstances made a lawsuit likely or even when an incident report was generated.
Where a hospital has destroyed evidence so important to a plaintiff’s case against it that the plaintiff is unable to proceed, courts have gone so far as to assume negligence (this is known as the Valcin presumption, from the case Valcin v. Public Health Trust of Dade County). However, a more common approach is to instruct a jury that if the evidence had not been lost it would be damaging to the defense. Possibly the bitterest pill is where a hospital has disposed of a failed medical device essential to a plaintiff’s case against the manufacturer: the hospital found itself liable for the entire case, in which the hospital would not have even been sued!
Obviously, complete (unaltered!) medical records are your first line of defense against a spoliation claim. Risk management should also coordinate with maintenance to create a chain of custody where there is reason to believe an object could one day become evidence, ensuring that the item is maintained in its original condition, able to be identified, and located. Make a record of who can authenticate the item if necessary. Finally, remember that where a procedure has been implemented for the orderly disposal of records or medical waste, following that established procedure can be strong evidence against a claim of bad faith in disposing of an item, as long as there is no reason to believe that someone (or someone’s lawyer) will come looking for it one day.
