Howard Reg'l Health System D/B/A Howard Cmty. Hosp. v. Gordon

• Decision Date: 10 August 2011
• Docket Number: No. 34S02–1009–CV–476.,34S02–1009–CV–476.
• Citation: 952 N.E.2d 182
• Parties: HOWARD REGIONAL HEALTH SYSTEM d/b/a Howard Community Hospital, Charles G. Marler, M.D., and Community Family Health Center, Appellants (Defendants below),v.Jacob Z. GORDON b/n/f/ Lisa Gordon, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

952 N.E.2d 182

HOWARD REGIONAL HEALTH SYSTEM d/b/a Howard Community Hospital, Charles G. Marler, M.D., and Community Family Health Center, Appellants (Defendants below),

v.Jacob Z. GORDON b/n/f/ Lisa Gordon, Appellee (Plaintiff below).

No. 34S02–1009–CV–476.

Supreme Court of Indiana.

Aug. 10, 2011.

Bryan H. Babb, Kelly M. Scanlan, Indianapolis, IN, Milford M. Miller, Fort Wayne, IN, Attorneys for Appellants.R. Thomas Bodkin, James D. Johnson, Evansville, IN, Attorneys for Amicus Curiae Defense Trial Counsel of Indiana.John F. Muller, Indianapolis, IN, Attorney for Appellee.Steven L. Langer, Valparaiso, IN; Tara M. Wozniak, Indianapolis, IN, Attorneys for Amicus Curiae Indiana Trial Lawyers Association.

On Petition to Transfer from the Indiana Court of Appeals, No. 34A02–0902–CV–179

SHEPARD, Chief Justice.

Jacob Gordon's mother sued Howard Community Hospital, alleging it committed medical malpractice while caring for her son. In another count of the complaint, she sought separate damages for spoliation, saying the Hospital had lost certain medical records associated with Gordon's care and that this loss made it impossible for Gordon to pursue a medical malpractice claim against one of his doctors, who was also a defendant.

As we explain below, many of the considerations that led us to decline to recognize first-party spoliation in Gribben v. Wal–Mart Stores, Inc., and to decline to recognize third-party spoliation in Glotzbach v. Froman in the context of workers' compensation, apply here.

Facts and Procedural History

On January 6, 1999, Lisa Gordon was admitted to Howard Community Hospital in labor.¹ Dr. Richard A. Gard had provided Lisa's prenatal care. He delivered Jacob Gordon by caesarian section after determining the baby was in a breech position, on January 7, 1999, at 2:30 p.m. Sometime thereafter it became apparent that Jacob suffered from numerous serious disorders. The Gordons believe that Jacob's conditions may have been caused by substandard medical care at the time of his birth.

Counsel for Lisa Gordon first requested medical records from the Hospital in December 2003 and then on into 2004. Counsel made additional requests after it became apparent that there were gaps in the medical records turned over.

In September 2005, the Gordons filed a complaint for damages with the Indiana Department of Insurance as required by the Medical Malpractice Act. The complaint named Howard Regional as the sole defendant and alleged that one of the hospital nurses did not conform to the applicable standard of medical care, causing damage to Jacob Gordon.

On March 27, 2006, the Gordons filed a motion to compel discovery in Howard Circuit Court. The Hospital filed affidavits dated June 5, 2006, stating that some of the records could not be located. The missing records included nursing and narrative notes from 7:45 p.m. January 6 through 2:30 p.m. January 7; labor flow records from 6 a.m. through 2:30 p.m. January 7; fetal heart monitor strips from 5:52 a.m. through 2:30 p.m. January 7; and peri-operative nurses' notes from the caesarian section performed on January 7. (App. at 51.)

In September 2006, the Gordons filed an amended complaint naming three additional defendants: Dr. Gard, Dr. Charles G. Marler, and Community Family Health Center. This new complaint enumerated five counts: Count I, medical negligence against Howard Regional; Count II, third-party spoliation of evidence against Howard Regional; Count III, medical negligence against Dr. Gard; Count IV, medical negligence against Dr. Marler; and Count V, vicarious liability against Community Family Health Center.

The Gordons moved for partial summary judgment against Howard Regional only with respect to Count II, the third-party spoliation claim. In support, they tendered the affidavit of a neonatologist retained by the Gordons stating she could not determine whether the standard of care was met because of the missing medical records. Howard Regional responded to that motion and likewise filed a cross-motion for partial summary judgment. After a hearing on these cross-motions, the trial court granted the Gordons partial summary judgment and authorized an interlocutory appeal by Howard Regional.

The trial court concluded that Howard Regional had a duty to maintain the Gordons' medical records at least through the time of the Gordons' records request. It also concluded that under Indiana law a separate cause of action for failure to maintain these records existed and that the Hospital had breached its duty to maintain records under Indiana Code Section 16–39–7–1. The trial court held that Howard Regional “ha[d] created a significant gap in the records that would allow a medical panel or a factfinder to determine whether the care that was provided ... met the relevant standard.” (App. at 200–01.)

Howard Regional appealed and the Court of Appeals affirmed. Howard Reg'l Health Sys. v. Gordon, 925 N.E.2d 453 (Ind.Ct.App.2010). We granted transfer, 940 N.E.2d 823 (Ind.2010) (table), thus vacating the opinion of the Court of Appeals.

General Contentions

Howard Regional contends the Gordons' spoliation claim is within the purview of the Medical Malpractice Act and thus a medical review panel must give its opinion before an action against the Hospital may commence. (Appellant's Br. at 10–11.) The Gordons contend their claim for spoliation “is a totally separate claim—distinct from the medical malpractice claim.” (Appellee's Br. at 7.)

Preserving Medical Records and the Medical Malpractice Act

Two threshold questions about the Gordons' claim are whether it falls within the general scope of the Medical Malpractice Act and whether Indiana's statute on maintenance of health records statute creates a private right of action. We review such questions of statutory interpretation under a de novo standard and owe no deference to a trial court's legal conclusions. South Bend Tribune v. South Bend Cmty. Sch. Corp., 740 N.E.2d 937 (Ind.2000).

Indiana courts understand the Malpractice Act to cover “curative or salutary conduct of a health care provider acting within his or her professional capacity,” Murphy v. Mortell, 684 N.E.2d 1185, 1188 (Ind.Ct.App.1997), but not conduct “unrelated to the promotion of a patient's health or the provider's exercise of professional expertise, skill, or judgment.” Collins v. Thakkar, 552 N.E.2d 507, 510 (Ind.Ct.App.1990). To determine whether the Act is applicable, the court looks to the substance of a claim. Van Sice v. Sentany, 595 N.E.2d 264 (Ind.Ct.App.1992).

Thus, regardless of what label a plaintiff uses, claims that boil down to a “question of whether a given course of treatment was medically proper and within the appropriate standard” are the “quintessence of a malpractice case.” Id. at 267 (plaintiff's claims of fraud and battery fell within the Malpractice Act because the first was essentially a claim that the defendant failed to adhere to a standard of care and the second was a claim that the defendant did not obtain informed consent for a procedure); Popovich v. Danielson, 896 N.E.2d 1196, 1202–04 (Ind.Ct.App.2008) (though styled as assault and battery, fraud, breach of contract, and defamation, all plaintiff's claims involved defendant's exercise of professional judgment and involved actions taken while providing medical care and thus the requirements of the Act applied).

By contrast, to fall outside the Malpractice Act a health care provider's actions must be demonstrably unrelated to the promotion of the plaintiff's health or an exercise of the provider's professional expertise, skill, or judgment. Kuester v. Inman, 758 N.E.2d 96 (Ind.Ct.App.2001); Collins, 552 N.E.2d at 510 (Ind.Ct.App.1990) (Act held inapplicable in cases where the conduct involved was “unrelated to the promotion of a patient's health or the provider's exercise of professional expertise, skill or judgment”).

Splitting out separate actions by a provider has usually been held contrary to the Act. In determining that both the activity of credentialing and medical malpractice should be reviewed together under the Act, the Court of Appeals explained the landscape well:

Viewed from the historical perspective we believe the conclusion is inescapable that our General Assembly intended that all actions the underlying basis for which is alleged medical malpractice are subject to the act. [T]he obvious purpose of the act is to provide some measure of protection to health care providers from malpractice claims, and to preserve the availability of the professional services of physicians and other health care providers in the communities and thereby protect the public health and well-being[.]

Winona Mem'l Hosp., LP v. Kuester, 737 N.E.2d 824, 828 (Ind.Ct.App.2000) (quoting Sue Yee Lee v. Lafayette Home Hosp., Inc., 410 N.E.2d 1319, 1324 (Ind.Ct.App.1980)).²

The Gordons' underlying claim in Count II alleges medical malpractice because the “[m]aintenance of health records by providers” is so closely entwined with health care and because records in general are so important to a medical review panel's assessment of whether the appropriate standard of care was met. Ind.Code §§ 16–39–7–1, 34–18–10–22(a). The Gordons rightly acknowledge how important health care records are for “the nature and quality of the health care provided, for billing purposes, and peer review.” (Appellee's Br. at 16.) (emphasis added) Surely the skillful, accurate, and ongoing maintenance of test and treatment records bears strongly on subsequent treatment and diagnosis of patients. It is a part of what patients expect from health care providers. It is difficult to contemplate that such a service falls outside the Act.

We thus move to the Gordons' contention that the statute on maintenance of health records creates a private right of action separate from the Medical Malpractice Act. The Gordons maintain that the enactment of new subsection (d) “implicitly recognizes that there is civil...