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Spoliation
Investigation: Spoliation is the intentional destruction,
alteration, or concealment of evidence. If proved, spoliation may
be used to establish that the evidence was unfavorable to the
party responsible. Spoliation may involve documents (such as a
medical record) and occurs when the document is altered,
mutilated, lost, concealed, or destroyed.
Spoliation can also involve physical evidence in a case
such as a pathology specimen, a vehicle involved in an accident,
or a product that allegedly caused the injury. Courts have crafted various consequences for
those engaged in spoliation of evidence.
These range from changing the outcome of a case to the
filing of criminal charges and incarceration.
The particular consequence handed down depends on the
jurisdiction of the case. In some jurisdictions, spoliation of
evidence by the plaintiff may result in the plaintiff’s case
being thrown out of court. The decision of a trial court in Tennessee
provides such an example. In
this case, a former financial officer sued his former employer
for, among other things, wrongful termination.
He was suing for more than $1 million. Soon after the suit
was filed, the defendant’s attorney requested that the plaintiff
surrender a home computer (provided for him by his former
employer) without deleting any data from the hard drive. The former officer eventually surrendered the
computer; “but the hard drive had been purged of all
information.” The defendant company was able to prove that the
deletion was intentional and that the deleted material would have
been relevant to the defense of the lawsuit.
As a result of this intentional spoliation by the
plaintiff, the trial court dismissed plaintiff’s entire lawsuit
(Burnstein, 2003). When there is spoliation by a defendant, a
case may end in settlement for full policy limits, even though the
case otherwise could have been defended.
Spoliation may also cause the entry of a default judgment
against the defendant and, in some jurisdictions, may result in
the award of punitive damages. Spoliation may also cause the court to shift
the usual burdens of proof in the case.
For example, in an Alaska case, the nursing notes were
“lost,” impairing plaintiff’s ability to prove malpractice.
The Alaska Supreme Court held that, because of the
spoliation by the defendant, the burden of proof must shift from
the plaintiff to the defendant (Sweet Sisters v. Providence in
Washington, 1995). Some courts have held that the plaintiff is
entitled to a jury instruction when the defendant has engaged in
spoliation of evidence. An
important California case provides an example.
A physician, the defendant in a medical malpractice case,
admitted that he had recopied his medical records and did not have
the originals. The
physician explained that he recopied his notes because the
original record would have been difficult to decipher.
The defendant obtained a ruling from the trial court that
any reference to the unavailability of the original records would
be “unduly prejudicial.”
The jury verdict and the court’s judgment were in favor
of the defendant. The plaintiff appealed and the judgment was
overturned. The
appellate court stated that there had been a miscarriage of
justice in the trial court. It further stated that suppression of
evidence by spoliation is receivable against him (the spoliator)
as an indication of his consciousness that his case is a weak or
unfounded one. The court implied that the plaintiff should be
entitled to a jury instruction stating that the unavailability of
the medical records tends to discredit the MD’s defense (Thor v.
Boska, 1974). In some states, including California and
Idaho, intentional concealment of medical records by a defendant
in a medical malpractice action can be grounds for extending the
statute of limitations (California Code of Civil Procedure section
340.5). Also in
Idaho, the cap on the recovery of non-economic damages may be
waived when a physician’s conduct is found to be “willful and
wanton.” In Hawaii, if a medical provider alters records, the
plaintiff may ask for monetary sanctions to compensate for the
harm. Furthermore, in some cases, the discovery of
altered records can result in the defendant automatically being
found negligent. In
that case the only issues remaining would be the damages and
plaintiff’s comparative negligence.
“The plaintiff can also file a claim for fraud,
intentional misrepresentation, and punitive damages” (Medical
Insurance Exchange of California, 2004). Spoliation of evidence can also result in
administrative and criminal penalties.
Spoliation involving a medical record may be considered to
be unprofessional conduct by a professional board.
This may lead to action against the professional’s
license to practice (California Business & Professional Code
section 2262). A dramatic case in Pennsylvania illustrates
the risk of incarceration. This
case involves an LPN who worked in a nursing home.
She changed the medical record to cover up an error. After
the death of a resident, complaints were made to the Pennsylvania
Department of Health. Eventually, the federal government brought
criminal charges against the LPN, based on a 1996 provision of the
Health Insurance Portability and Accountability Act (HIPAA) that
states that it is a felony to make false statements in a matter
involving federal health care benefits (such as Medicare). In federal court, the LPN pleaded guilty to
various acts of spoliation of the medical record.
She faced a maximum of five years in federal prison and a
$250,000 fine. The
LPN’s family begged the judge not to send her to prison.
However, some violations of HIPAA include a mandatory
prison sentence, leaving the judge to choose.
According to the judge, she was also likely to lose her LPN
license (Grossman 2001) Independent Tort of Spoliation is seen in
some jurisdictions. A
party harmed by spoliation of evidence can sue the offender for
damages in a separate tort cause of action.
For instance, the District of Columbia recognizes a tort
cause of action for negligent or reckless spoliation of evidence.
Such a suit can be brought against a third party who is not
involved in the underlying lawsuit. The case that defined this cause of action
involves a plaintiff who had been in a head-on-collision while
driving a rental vehicle. The
plaintiff alleged that he was severely injured when the engine of
the rental vehicle intruded into the passenger compartment.
The rental company agreed with the plaintiff’s attorney
that it would hold the wrecked vehicle for a certain period of
time. However, the
wreck was sold for scrap metal before the expiration of the
agreed-upon time period. As
a result, the plaintiff’s accident re-constructionist could not
determine whether the plaintiff’s injuries were caused by the
manufacturer’s negligent design of the vehicle. The plaintiff filed suit in federal District
Court against Chrysler for negligent design and against the rental
company for negligent spoliation of evidence.
The District Court held in favor of the rental car company
and granted summary judgment.
The plaintiff appealed to the District of Columbia Court of
Appeals. This court
ruled that the jurisdiction of the District of Columbia does
indeed support an independent and actionable tort of spoliation of
evidence. It found
that the District Court had erred in granting summary judgment in
favor of the rental car company (Holmes v Amerex Rent-Car, 1999). Some courts have refused to recognize an
independent tort of spoliation of evidence.
In a 1999 case, the California Supreme Court articulated
its reasons for rejecting the tort. The facts of the case involve
a plaintiff who was injured during a surgical procedure: she
alleged that while she was under general anesthesia, an
electrocautery tool caused the oxygen used with the anesthesia to
ignite. Her face was
severely burned in the fire.
Records of one of the physicians indicated that the
electrocautery tool had “failed” when a flame emerged from it. The plaintiff’s counsel made various
efforts to ensure the preservation of the evidence by the
hospital, particularly the electrocautery tool, oxygen tank, and
mask. The hospital
refused to turn over the medical equipment used in the surgery and
refused to allow inspection of the equipment.
The plaintiff brought lawsuits against various parties,
including a product liability action against the manufacturer
because there was no evidence presented to show that the
electrocautery tool was defective. The plaintiff also sued the hospital for intentional and negligent spoliation of evidence, asking for compensatory and punitive damages. She claimed that the loss of concealment of this evidence by the hospital caused harm in that she was deprived of evidence needed to discover and prove the cause of her injuries and to be compensated for those injuries. Eventually the issue was brought to the California Supreme Court. This court held that, “The benefits of recognizing a tort cause of action to deter third party spoliation of evidence and compensate victims of such misconduct, are outweighed by the burden to litigants, witnesses, and the judicial system that would be imposed by potentially endless litigation over a speculative loss, and evidence retention policies” (Temple Community Hospital v. Superior Court, 1999). The legal nurse consultant (LNC) is uniquely
qualified to determine when spoliation has likely occurred.
The LNC has an intimate familiarity with the requirements
of documentation and can quickly note when something is missing.
In addition, the LNC’s experience will help determine
when the timing and sequence of events do not make sense. For example, this author reviewed a case in
which the correctional facility had retyped the internal documents
on a wrong death case. However
the Community Mental Health records were subpoenaed which were
handwritten by the correctional facility and did not coincide with
the typed notes. Also all records were destroyed of the documentation when the
diseased victim was placed in observation.
The correctional facility gave statements that the victim
did not receive his medications the night he died. There were two
different medication sheets, one sheet had the medications circled
the night he died the other did not. The one from Community Mental
Health did not have the medications circled.
Both medication sheets showed charting five days after his
death. The physician progress notes were completely
missing. Community
Mental Health documentation on the correctional facilities records
were missing. However, the records from Community Mental Health
had documentation present on the correctional facility. The floppy disc turned over from the
correctional facility of the total records of the victim was
completely empty. The
video tapes of the correctional facility were also destroyed. The victim was having classic site effects
from an overdose of neuroleptics.
His behavior was being recorded as manipulative and
psychotic. Even with
classic drug overdose warning signs, the physicians continued to
increase the drugs. The
method of charting the new orders put the correctional facility at
risk for giving the new orders and the old medication orders.
The victim died of Neuroleptic Malignancy Syndrome. The case is pending in Federal Court with
sixteen counts of gross and flagrant neglect on all parties
involved. (Mordan v. Grand Traverse County Sheriff Department,
Community Mental Health and all physicians, nurses, and social
workers involved) The LNC’s experienced eye may also note
physical irregularities in the notes such as words that are
obliterated or written over, or letters or numbers that look
unusual. This was seen within the medication sheet of the above
case. There may be words or entries that are squeezed in between
words or lines, or otherwise appear as though they were added
after the fact. For these types of alterations, the attorney may
need to have the original record examined by a documentation
specialist. These experts are able to use various scientific
techniques to find proof that an alteration has occurred. The LNC is very valuable in determining when
spoliation may exist. As
discussed above, spoliation may influence the outcome of a case or
have other important consequences.
If spoliation is suspected, the LNC should inform the
attorney immediately so that the suspected spoliation can be
investigated and an appropriate strategy formulated. References: Burnstein, J (2003) Spoliation of evidence. Findlaw for Legal Professionals. Retrieved February 17, 2004, form http://library.lp.findlaw.com/articles/files/0097/008762/title/Subject/topic/Civil%20Procedure_Evidence%20and %20Witnesses/filename/civilprocedure_2_777. CA Business & Professions Code section 2262 CA Code of Civil Procedure section 340.5 CA Penal Code section 471.5 Grossman E. (2001) Bethlehem nurse pleads guilty to covering up error. The Morning Call, Allentown PA. Retrieved October 17, 2004 Medical Insurance Exchange of California(2004) http://www.miec.com/htmldocs.sprt20a.htm. Sweet v. Sisters of Providence in Washington (1995) 895 P. 2d 484 (Alaska). Special Medical Insurance Exchange of California, (2004). http://www.miec.com/htmldocs.sprt20a.htm. Temple Community Hospital V. Superior Court
(1999) 20 Cal.4th 464 This author has 18 years of experience in
Medical Fraud Investigation. Jan Parrish, RN, BSN, LNC, MSM Legal Nurse Consultant
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