The Court of Appeals of Arkansas, Division II (“Arkansas Appellate Court”) in its opinion filed on October 25, 2017 discussed the duty to preserve medical records and the issue of spoliation of medical records in an Arkansas medical malpractice case.
Duty To Preserve
Under Ark. R. Civ. P. 37(b)(2), a party risks sanctions if he or she destroys documents or other evidence after the court has issued an order compelling discovery or a protective order, for destruction constitutes an obvious failure to comply with the order. However, the rule does not expressly address the destruction of relevant documents before litigation has commenced or after a complaint has been filed but before the documents are sought via discovery.
In the case the Arkansas Appellate Court was deciding, the defendant hospital was on notice of a potential medical malpractice lawsuit resulting from the suicide of a patient less than two weeks after he was discharged from the defendant hospital following an involuntary commitment to the hospital after the man twice attempted suicide. The defendant hospital was put on notice by letter from an Arkansas medical malpractice attorney four days after the man’s suicide that it was “not to destroy, conceal or alter any paper or electronic files. . . .” regarding the man. The defendant hospital acknowledged the request and originally sequestered the paper records. The defendant hospital subsequently scanned the medical records into electronic form and destroyed the paper copies, pursuant to its records retention policy.
The defendant hospital argued that it was in compliance with the obligations under Arkansas law regarding the retention and preservation of medical records. The Arkansas Appellate Court stated, however, that is not sufficient because not only was it reasonably foreseeable that the original medical records would be material to a potential claim, but also because the paper records existed at the time the letter was sent, and the defendant hospital agreed to retain them. The Arkansas Appellate Court further stated that it was not unduly burdensome for the defendant hospital to maintain the paper records; unlike the example of the burdensome requirement that a corporation to preserve all e-mail correspondence, the defendant hospital was not required to keep all the patients’ paper records, just this particular patient’s medical records. The Arkansas Appellate Court therefore held that a duty attached for the defendant hospital to preserve the paper copies of the man’s medical records.
Proper Sanction For Failing To Preserve The Medical Records
The Arkansas Appellate Court cited Arkansas Rule of Civil Procedure 37(b)(2)(C), which provides that if a party fails to obey an order to provide or permit discovery, the court in which the action is pending may make such orders in regard to the failure as are just, including an order striking out pleadings or rendering a judgment by default against the disobedient party. In the case it was deciding, the circuit court had struck the defendant hospital’s answer.
In reviewing the circuit court’s decision to strike the defendant hospital’s answer, the Arkansas Appellate Court noted that the circuit court chose to reject the defendant hospital’s argument that the electronic copy was an exact replica and therefore considered an “original.” In granting the motion to strike, the circuit court acknowledged that striking the answer of a party is very serious but that the conduct was most egregious as evidenced by the fact that the defendant hospital was “clearly placed on notice not to destroy these critical documents,” yet it proceeded to destroy the original file anyway. The circuit court further considered the alternative to instruct the jury on spoliation of evidence, but found that it would be insufficient given the importance of the factual dispute surrounding which documents were in the original file. The Arkansas Appellate Court held that because the circuit court clearly found that the defendant hospital willfully destroyed the paper medical records and that a curative instruction would be insufficient, it could not say that the court abused its discretion by striking the answer.
Source Russellville Holdings, LLC v. Peters, No. CV-17-58.
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