`Lost' hospital records lead to default & 4 million-dollar award. (Nursing Law Case of the Month).

CASE ON POINT: Keene v. Brigham and Women's Hospital, 755 N.E.2d 725 -MA (2002)

ISSUE: It is not unusual for a plaintiff to be defaulted and judgment entered for failure to comply with court ordered Discovery. However, it is most unusual for a defendant to be defaulted and judgment entered for failure to comply with court ordered Discovery. However, that is exactly what happened in this extraordinary Massachusetts case, in which the parents of a brain damaged newborn brought suit against a hospital nine years later. Curiously, certain hospital records that were crucial to the plaintiffs case were "lost." Apparently, the Massachusetts courts were not buying the hospital's all-too-convenient explanation. A default was entered against the hospital. A judgment in excess of 4 million-dollar judgment was entered for plaintiff.

CASE FACTS: Dylan Keene was born on May 15, 1986, at 1:07 a.m. at Brigham and Women's Hospital. At 6:30 a.m. He was discharged from the hospital's neonatal intensive care unit to the regular nursery with a one-page discharge note, which stated, in pertinent part, "watch for [signs and symptoms] of sepsisa.a.a. [sic] hold antibiotics pending CBC [complete blood count] results & cultures." The records for the next 24 hours of the plaintiffs care were "missing." The records resume on May 16, 1986, at 2:30 a.m. They indicate that the plaintiff went into septic shock and shortly thereafter began having seizures. Subsequent testing revealed that the plaintiff had contracted neonatal sepsis and meningitis, which resulted in profound brain damage. The plaintiff was discharged from the hospital on June 18, 1986. On May 12, 1995, (almost nine years after his birth), the plaintiff, through his parents, commenced suit for medical malpractice against the hospital on the grounds that the hospital, acting through its employees and other personnel, failed to properly diagnose and treat the plaintiff for the sepsis and meningitis. The hospital asserted the affirmative defenses of charitable immunity, and the cap on damages against charitable corporations. On October 18, 1995, the plaintiff served the defendant with a notice to take its deposition. The plaintiff sought, inter alia, the names, addresses, licenses held by, and board certifications of any doctor, nurse, or other persons involved in the treatment and care of the plaintiff on May 14, May 15, and May 16, 1986, including the names of those doctors and nurses involved in the decision whether or not to give the plaintiff antibiotics on those dates. Although the defendants agreed to furnish other information requested in the notice to take its deposition, the defendant by letter objected to this specific request. The defendant sought a protective order from the Massachusetts Superior Court. The court denied the motion. The plaintiff filed a motion for sanctions requesting that the defendant be precluded from offering any testimony from any doctor or nurse involved in the treatment or care of the plaintiff for the period of time involved. The defendant was ordered to make an effort to determine the names and addresses of the physicians and nurses who cared for the plaintiff during the critical time period. The Superior Court granted the plaintiffs motion that the defendant be defaulted. Judgment was entered for $4,108,3111.66. The hospital appealed.

COURT'S OPINION: The Court of Appeals of Massachusetts affirmed the judgment of the trial court. The court held, inter alia, that the Rules of Civil Procedure permitted the entry of a default against a party for disobeying a discovery order. The sole issue was whether the trial judge abused his discretion by imposing as a default sanction.

LEGAL COMMENTARY: The trial judge reasoned that the hospital's conduct fit the criterion of "fault" set forth in case law to justify the entry of default. The judge considered that justice is better served by allowing parties their day in court. However, by imposing the default sanction, he was depriving the hospital of its day in court. However, the loss of the records for which the hospital was responsible had, in essence, deprived the plaintiff of his day in court. Further, the imposition of such a sanction serves as notice to those with a statutory duty to preserve records to take full responsibility to ensure that such records are, in fact, preserved. Editor's Note: It is interesting to note that in most cases in which hospitals report records "missing" or "lost" the hospital appears to be liable, and the amount of damages in question is significant. Seldom, does one find that hospital records "missing" or "lost" when the medical records favor the defendant hospital.

Meet the editor & publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Rhode Island law firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's. Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific water, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.