What happens when an x-ray that proves that a physician’s failure to diagnose lung cancer disappears before suit is filed? When a biopsy slide is lost? When a medical instrument that was retained in a patient during surgery is discarded after the surgery to remove it took place? How can a plaintiff prove a medical malpractice case without the necessary medical evidence?
Spoliation of evidence is a legal term for the destruction, mutilation or alteration of evidence by a party to an action. Spoliation can be intentional or negligent. In either case, the party responsible for the spoliation will suffer adverse consequences. In some cases, spoliation of evidence can be brought in a separate action, with damages amounting to what could have been recovered in the underlying case if the evidence had been available for the trial.
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Intentional Spoliation of Evidence
Intentional spoliation of evidence occurs when a party to litigation, with knowledge that litigation concerning the evidence is pending alters or destroys the evidence with the intention of making the evidence unavailable for use at trial. For example, where a physician alters medical records to cover-up a missed diagnosis, intentional spoliation has occurred. Likewise, when a hospital administrator instructs a medical records clerk to dispose of x-rays that indicate a medical error, intentional spoliation occurs.
In medical malpractice cases, intentional spoliation of evidence can have varying effects on the litigation. Some courts impose monetary sanctions against the party responsible for the spoliation. Other courts have instructed the jury regarding the spoliation and have instructed the jury that they can infer that the spoliation was intentional. Still other courts have directed verdicts against the party responsible for the spoliation.
Negligent Spoliation of Evidence
Negligent spoliation of evidence can occur in a number of ways. Medical records or imaging films can inadvertently be filed under an incorrect patient name. Records can be lost during transport from one hospital department to another. Biopsy materials that have been sent to a litigation expert for testing can be destroyed in the testing process. Sometimes negligent spoliation occurs because hospital employees are not sure what information should be saved as a part of a patient’s medical records. For example, in cases alleging malpractice resulting in a birth injury, fetal monitoring strips are essential to tracing the time line of the events. However, if personnel in the labor and delivery ward are not instructed to retain the strips, that information may be discarded.
When the loss or destruction of medical negligence is merely negligent, the consequences for the responsible party are less severe. Courts may impose discovery sanctions and may instruct the jury that the evidence was lost or destroyed as the result of the responsible party’s negligence. Courts will not generally direct a verdict for the innocent party in cases of negligent spoliation.