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 Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. cases encountered "lost" or "missing" records, so called? How often are the "lost" or "missing" records at the very heart of the alleged misfeasance A term used in Tort Law to describe an act that is legal but performed improperly.
Generally, a civil defendant will be liable for misfeasance if the defendant owed a duty of care toward the plaintiff, the defendant breached that duty of care by improperly performing or nonfeasance The intentional failure to perform a required duty or obligation.
Nonfeasance is a term used in Tort Law to describe inaction that allows or results in harm to a person or to property. ? 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 jaun·diced
1. Affected with jaundice.
2. Yellow or yellowish.
3. Affected by or exhibiting envy, prejudice, or hostility.
1. 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 Brigham and Women's Hospital (BWH) is a hospital in the Longwood Area of the Boston, Massachusetts neighborhood of Mission Hill. With Massachusetts General Hospital, it is one of the two founding members of Partners HealthCare. . 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 Noun 1. neonatal intensive care unit - an intensive care unit designed with special equipment to care for premature or seriously ill newborn
ICU, intensive care unit - a hospital unit staffed and equipped to provide intensive care or NICU NICU
neonatal intensive-care unit ) because he was "cyanotic Cyanotic
Marked by bluish discoloration of the skin due to a lack of oxygen in the blood. It is one of the types of congenital heart disease.
Mentioned in: Congenital Heart Disease ." Blood tests, including a complete blood count (CBC (1) (Cell Broadcast Center) See cell broadcast.
(2) (Cipher Block Chaining) In cryptography, a mode of operation that combines the ciphertext of one block with the plaintext of the next block. ) 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 mis·place
tr.v. mis·placed, mis·plac·ing, mis·plac·es
a. To put into a wrong place: misplace punctuation in a sentence.
b. . 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 RMF Resource Measurement Facility
RMF Rich Music Format
RMF René Moawad Foundation (Hazmieh, Lebanon)
RMF Rich Map Format (Worldcraft Half-Life mapping tool)
RMF Relativistic Mean Field ). 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 ASSESSMENT OF DAMAGES. After an interlocutory judgment has been obtained, the damages must be, ascertained; the act of thus fixing the amount of damages is called the assessment of damages.
2. In cases sounding in damages, (q.v. 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 Lawyers and courts use the term spoliation to refer to the withholding, hiding, or destruction of evidence relevant to a legal proceeding and is a criminal act in the United States under Federal and most State law. . This permits the imposition of sanctions and remedies for the destruction of evidence in civil litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called 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.