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Medical Malpractice Case Update – Fall 2009

By Adam P. Chaddock

I. Spoliation of Evidence in the Context of a Medical Malpractice Action

Claims for spoliation of evidence are increasingly filed in cases of construction accidents, automobile accidents and products liability. Spoliation of evidence claims are rarely found in medical malpractice cases. However, in Midwest Trust Services, Inc. v. Catholic Health Partners Services, the estate of a patient who died of a heart attack after undergoing a cervical fusion filed a lawsuit for negligent spoliation of evidence against various doctors and healthcare entities. This spoliation of evidence case was filed as a companion to a previously filed medical malpractice claim against the same defendants.

During the medical malpractice claim, plaintiff discovered that there were records allegedly missing from the hospital chart, including an occurrence report, EKG strips, and cardiac monitoring strips. The medical malpractice case went to trial first, resulting in a not guilty for one defendant, and a hung jury as to all other defendants. The medical malpractice action remains pending as to the defendants against which no verdict was rendered.

In the spoliation action, plaintiff alleged that but for the loss, destruction, or alteration of evidence, it would have prevailed in the medical malpractice action. In granting summary judgment in favor of defendant, the trial court noted that the loss of the documents did not prevent the plaintiff from pursuing his case as he was able to obtain expert testimony critical of the defendants, even in the absence of the records. After the grant of defendant’s motion for summary judgment, plaintiff appealed.

The appellate court noted that spoliation of evidence claims are not independent causes of action, but rather, can be stated under existing negligence law requiring a plaintiff to plead the existence of a duty, a breach of that duty, an injury proximately caused by the breach and damages. To satisfy the element of proximate cause, the plaintiff in a spoliation of evidence action must allege sufficient facts to support a claim that the loss or destruction of the evidence caused the plaintiff to be unable to prove an underlying lawsuit. Accordingly, in the instant case, plaintiff had to demonstrate that but for the alleged missing documents, it had a reasonable probability of succeeding in its case against the defendants in the underlying medical malpractice action. In as much as plaintiff’s expert testified that he had sufficient information upon which to base his opinions that the defendants were negligent, the appellate court concluded that the missing documents did not prevent plaintiff from proving his cause of action.

Obviously, if plaintiff’s experts had opined that they were unable to draw conclusions because of the lack of certain missing medical records, the outcome could have been much different. This case emphasizes the need to have proper records storage and retention so as to avoid the potential for a spoliation of evidence claim.

II. Proper Disclosure of an Expert’s Opinions

In Spaetzel v. Dillon, the First District recently considered what amount of information must be provided in a medical malpractice defendant’s Rule 213 disclosures in regard to an expert’s proposed testimony. There, plaintiff objected at trial that the defendant’s expert could not base his opinions on x-rays when that basis for his opinion had not been disclosed prior to trial. The trial court overruled plaintiff’s objection, both at trial and in a post-trial motion. Plaintiff appealed.

Defendant’s pre-trial written Rule 213 disclosures noted that the expert might rely on all “diagnostic studies.” Further, the written 213 disclosures indicated that the defense expert would testify regarding the “air fluid level postoperatively;” whether the same was “evidence of a recurrent paraesophageal hernia;” and whether additional care or testing was necessary. During the expert’s deposition, the expert specifically testified that he had reviewed x-rays during his consideration of the case. Plaintiff’s counsel failed to follow up. Despite these disclosures, plaintiff argued on appeal that the disclosures were not sufficient to place plaintiff on notice that defendant’s expert would use blow ups of the relevant x-rays at trial and offer opinions regarding the same.

The appellate court found plaintiff’s position unpersuasive. Noting that experts are allowed to offer corollaries of disclosed opinions, the appellate court held that defendant’s had properly disclosed its expert’s opinions. Whatever undisclosed opinions were offered by the expert were nothing more than permissible elaborations on the originally disclosed opinions. This case demonstrates that trial courts have much discretion in determining that undisclosed opinions might well be admissible as elaborations or corollaries of properly disclosed opinions.


Originally published in the Fall 2009 edition of Quinn Quarterly.

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