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Hospital sanctioned for 'lost' or 'missing' medical records. (Hospital Law Case of the Month).

CASE ON POINT: Keene v. Brigham and Women's Hosp., 786 N.E.2d 824 -MA (2003)

ISSUE: How often have attorneys representing plaintiffs in medical malpractice cases encountered "lost" or "missing" records, so called? How often are the "lost" or "missing" records at the very heart of the alleged misfeasance or nonfeasance? There seems to be a recurring theme. Time after time, when it is "convenient" to the defense of the case the most significant portions of medical records are either "lost" or "missing." So it is with jaundiced eye that plaintiffs' attorneys (as well as some judges and juries) look at such claims by hospital officials.

CASE FACTS: Dylan Keene was born at 1:07 a.m., on May 15, 1986, at Brigham and Women's Hospital. Within the first five hours of life, he experienced some degree of respiratory distress and was sent from a regular care nursery to a special care nursery (also known as the neonatal intensive care unit or NICU) because he was "cyanotic." Blood tests, including a complete blood count (CBC) and a blood culture, were performed and, immediately thereafter, the newborn was sent back to a regular care nursery with a discharge note stating: "[r]outine care in regular nursery; "watch for [signs and symptoms] of sepsis;" and "[h]old antibiotics pending CBC results and cultures in 24 [hours], 48 [hours], and 72 [hours]." It was not known who received the results of the initial CBC, which indicated the presence of Beta-Hemolytic Streptococci Group B, or what actions were, or were not taken, with respect to the newborn's condition. This was so because all of the hospital's records with respect to his treatment and care between the hours of 6:30 a.m. on May 15, 1986, and 12 a.m., on May 16, 1986, vanished! The hospital's medical records on the newborn immediately following the period covered by the missing records indicate that by 2:30 a.m., the newborn was suffering from septic shock and began having seizures. It was not until this time that antibiotics were ordered and administered. Later testing revealed that the newborn had contracted neonatal sepsis and meningitis, resulting in severe injuries. The newborn was discharged from the hospital on June 17, 1986. Existing hospital records for the newborn for a seven-week hospital stay exceeded 470 pages. The only records that could not be located were those pertaining to the period in question. Neither party presented any evidence with respect to who was responsible for the loss or whether the records were "intentionally" destroyed or "negligently" or "accidentally" misplaced. The timing of the loss, however, was more certain. On May 1, 1987, following a request by the newborn's family for the newborn's medical records, the hospital filed a notice of a potential claim with its insurer, Risk Management Foundation (RMF). In response, RMF properly initiated an investigation into the circumstances of the newborn's injury while in the care of the hospital. The newborn's medical records, which were requested and received by RMF in the course of its investigation, appeared to have been "complete." The newborn, through his parents, brought suit for medical malpractice against the hospital, claiming that the hospital failed to properly diagnose or treat him for sepsis and meningitis. A default judgment was entered against the hospital. A hearing on assessment of damages was held before a judge of the Superior Court. After review by the Massachusetts Court of Appeals, the Supreme Judicial Court of Massachusetts granted leave for further appellate review.

COURT'S OPINION: The Supreme Judicial Court of Massachusetts affirmed the judgment imposing liability on the hospital. Damages were ordered to be assessed in the amount of $20,000, in accordance with the state cap on damages, plus interest and costs.

LEGAL COMMENTARY: In retrospect, this case should have been disposed of under the legal doctrine of spoliation of evidence. This permits the imposition of sanctions and remedies for the destruction of evidence in civil litigation. The doctrine is based on the premise that a party who has "negligently" or "intentionally" lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results. Because of the hospital's failure to maintain the missing records, as it was required to do by law, the newborn's family will never know for certain what actions were, or were not taken when the severity of the newborn's medical condition became apparent. Nor will they know the identity of those responsible for his care at that time.

A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Providence, R.I., 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 writer, 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, Marquis Who's Who in American Law, and Who's Who in America.
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Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Geographic Code:1U1MA
Date:May 1, 2003
Previous Article:Court errs in redacting cause from death certificate.
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