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Parker McCay Blog
How to Prevent Evidence Spoliation in Medical Lawsuits
January 15, 2015

Often times, a plaintiff’s attorney argues at commencement of suit that they were not provided with all of his or her client’s medical records, diagnostic films, operative reports, etc. Additionally, the lawyer is generally provided a certification from a medical records custodian at the hospital or doctor’s office declaring that the records responsive to the request are full and complete. 

Often times, a plaintiff’s attorney argues at commencement of suit that they were not provided with all of his or her client’s medical records, diagnostic films, operative reports, etc.  Additionally, the lawyer is generally provided a certification from a medical records custodian at the hospital or doctor’s office declaring that the records responsive to the request are full and complete.  Still, a plaintiff has a recognized cause of action in New Jersey if he or she is able to prove that there are records or films missing intentionally.

The tort of fraudulent concealment may be invoked by a plaintiff as a remedy for spoliation of evidence.  In order to make a prima facie (first impression) case for a claim of fraudulent concealment of evidence, the following elements must be proven:

(1)  The defendant in the fraudulent concealment action had a legal obligation to disclose evidence in connection with an existing or pending litigation;

(2)    The evidence was material to the litigation;

(3)    The plaintiff could not reasonably have obtained access to the evidence from another source;

(4)    The defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation; and

(5)    The plaintiff was damaged in the underlying action by having to rely on an evidential record that did not contain the evidence defendant concealed.

This is a difficult threshold to overcome for a plaintiff in most cases.  Plaintiff is charged with proving an element of scienter (intent or knowledge of wrongdoing)  on the part of the defendant.  Specifically, a plaintiff must prove that the defendant acted with both “intent” and with “purpose” to disrupt the underlying litigation.  Still, this claim can open the door to potential punitive damages.  Additionally, courts are often times hesitant to dismiss such a claim on summary judgment if there is even a scintilla of a genuine fact dispute.

In order to avoid claims of spoliation of evidence or fraudulent concealment, a hospital or doctor’s office has an affirmative duty to maintain complete records in the ordinary course of business.  These records must be kept in a safe and secure location.  A structured system should be in place to maintain control over these records.  This is even more important in today’s digital age where records are shifting from written to electronic.  Comprehensive technology must be in place to ensure that all documents, films and/or reports associated with a particular patient are easily accessible should a HIPAA-complaint request for same be received. Without such a system, hospitals and doctor’s offices could be burdened with defending these preventable claims.

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