Hospital Answer Stricken for Destroying Paper Medical Record after Scanning into the EMR

by Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.
Contact

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

Download PDF

On Wednesday, October 25, 2017, the Arkansas Court of Appeals handed down an opinion affirming a severe sanction against a hospital in a medical malpractice case. The trial court had stricken the hospital’s answer, where hospital personnel destroyed the patient’s paper medical chart, after scanning it into the electronic medical record, per the hospital’s stated policy.

On November 8, 2017, the hospital filed a petition for rehearing in the Court of Appeals and for review by the Arkansas Supreme Court. If the Court of Appeals decision stands, it will have serious implications for how Arkansas hospitals do business.

A more thorough analysis of the opinion and its possible impact follows.

I.   SUMMARY OF FACTS

Mr. Peters was admitted to Turning Point, an adult psychiatric treatment facility affiliated with Saint Mary’s Regional Medical Center (“Saint Mary’s”), following a suicide attempt on December 10, 2013. Saint Mary’s emergency room records reflected that Mr. Peters’s son, Jay, had been appointed as his father’s legal guardian prior to his admission.

Mr. Peters was released from Turning Point “on his own recognizance” on December 26, 2013. The discharge records showed that (1) Mr. Peters “denied further suicidal intentions,” (2) he “had engaged in no self-destructive behavior since admission,” and (3) his healthcare providers “felt that [Mr. Peters] had reached maximal benefit of hospitalization.” Mr. Peters committed suicide on January 6, 2014, ten days after his release from Turning Point.

On January 10, 2014, an attorney hired by Mr. Peters’s estate sent a seven-page letter, entitled “Important Notice Regarding Document and Data Preservation,” to Saint Mary’s. This letter notified Saint Mary’s that Mr. Peters’s family planned to investigate a potential claim against the hospital. Among other things, Saint Mary’s was directed “not to destroy, conceal or alter any paper or electronic files.” (Emphasis added).

Saint Mary’s chief quality officer asked the hospital’s director of the health-information-management department “to sequester the paper portion of Mr. Peters’s records.” This employee did as instructed, placing the records in her desk drawer. However, before the parties could meet and confer regarding the requests made in the letter, the director of the health-information-management department was replaced. Her replacement located Mr. Peters’s records in the desk drawer and “in the ordinary course of business, . . . took the complete paper portion to . . . the third-party vendor that scans medical records into Laserfiche.” The paper copy of Mr. Peters’s chart was scanned and then shredded.

Mr. Peters’s estate filed suit on May 6, 2015. During the course of discovery, four different sets of the medical records were produced. This prompted Mr. Peters’s estate to make a demand for a physical inspection of the paper copy of Mr. Peters’s chart. The estate was particularly interested in determining whether the original, paper copy included guardianship orders, as the scanned copy did not.

As a result of the request, the parties discovered that the paper copy of the records had been destroyed. Mr. Peters’s estate, in turn, filed a motion to strike Saint Mary’s answer, “arguing that [its] ability to obtain a full and fair trial had been irretrievably compromised as a result of the evidentiary destruction of the medical records.” The circuit court held a hearing and ultimately granted the estate’s motion and struck Saint Mary’s answer.

II.   THE COURT OF APPEALS’ DECISION

On appeal, the Court of Appeals affirmed the circuit court’s decision in all respects. In its fourteen-page opinion, the Court addressed three issues: (1) whether spoliation of evidence occurred; (2) whether the letter sent on behalf of Mr. Peters’s estate imposed a duty to preserve the original, paper copy of Mr. Peters’s medical records; and (3) whether the circuit court erred by striking St. Mary’s answer.

A. Spoliation

The Court of Appeals first noted that Arkansas’s appellate courts had never addressed spoliation, or “the intentional destruction of evidence,” with respect to the conversion of paper medical records into a different format. Given the lack of authority on this subject, the court opted to rely primarily on a case involving a construction-related accident. The court reinforced the general rule in Arkansas that “a circuit court is not required to make a specific finding of bad faith on the part of the spoliator.” Mr. Peters’s estate maintained that it should have had an opportunity to inspect the original, paper chart before its destruction. Saint Mary’s countered by arguing that no spoliation occurred because the entire chart was scanned to Laserfiche.

The court sided with the estate on this point, reasoning that “the parties and the fact-finder would be required to speculate as to what was in the stack of documents and what was actually in front of the caregivers when the decision to discharge Mr. Peters was made.” For the court, “the manner in which [Saint Mary’s] destroyed the records [was] irrelevant because . . . a finding of bad faith [was] not necessary.” The court also noted that a letter directing Saint Mary’s to preserve the original, paper chart was sent before the records were destroyed. Thus, the circuit court’s ruling that spoliation had occurred was affirmed.

B. Duty to Preserve

The Court of Appeals next addressed whether Arkansas law obligates a hospital to preserve paper copies of a patient’s medical records. Again, the court acknowledged the lack of case law on point, instead pointing out the general rule in other jurisdictions: “[A] party has an obligation to preserve relevant evidence upon receiving notice of being sued and when he or she should know that it may be relevant to future litigation.” The opinion also recognized that other courts have been reluctant to allow corporate defendants to “hide behind” document retention policies.

The Court cited favorably to language from a federal appellate decision, which suggested that “a court should consider whether the record retention policy is ‘reasonable considering the facts and circumstances surrounding the relevant documents.’” Mr. Peters’s estate argued that Saint Mary’s had an obligation to preserve the original, paper chart because it was reasonably foreseeable that the document might be relevant to a potential claim, especially in light of the letter sent on behalf of the estate only four days after Mr. Peters’s death.

The Court of Appeals again resolved this issue in favor of the estate. First, the Court emphasized that Saint Mary’s was unquestionably on notice of a possible suit prior to the destruction of the records because it had received the letter sent on behalf of the estate on January 10, 2014. Moreover, the court considered the fact that Saint Mary’s agreed to retain the original, paper chart as directed by the letter. The court found that “[i]t was not unduly burdensome for [Saint Mary’s] to maintain the papers records.” However, the court made clear that Saint Mary’s “was not required to keep all the patients’ paper records, just Mr. Peters’s.” As such, the circuit court’s finding that Saint Mary’s had violated a duty to preserve was affirmed.

C. Sanction of Striking Saint Mary’s Answer

Finally, the Court of Appeals assessed the striking of Saint Mary’s answer. The court set forth the applicable standard, which allows a circuit court to award severe sanctions for discovery violations. Such sanctions, including the striking of a defendant’s answer, are reviewed on appeal using an abuse-of-discretion standard. The court noted that the circuit court conducted two hearings on the issue of sanctions, “directed thoughtful questions to both parties,” and considered the severity of the sanction in light of the possible prejudice to Mr. Peters’s estate. The circuit court’s ruling was, therefore, permissible under Arkansas law and the state’s abuse-of-discretion standard.

D. Judge Glover’s Concurring Opinion

Judge David Glover, writing separately from the three-judge panel, noted that he voted “reluctantly [to] affirm this case.” After explaining the relevant legal framework and difficulties presented on appeal with an abuse-of-discretion standard, Judge Glover expressed “grave concern for the breadth of the sanctions levied against [Saint Mary’s] stemming from the destruction of the paper medical records.” According to Judge Glover, less severe sanctions may have been preferable on the facts, especially in light of the absence of case law directly on point. He concluded his concurring opinion by urging Saint Mary’s to seek review of the Court of Appeals’ decision from the Arkansas Supreme Court.

III.   IMPLICATIONS

This case raises a number of issues relevant to the Arkansas hospital community.

Most importantly, it presents a dangerous open question regarding a hospital’s duty to preserve original, paper copies of medical records after scanning them into an electronic medical record system. We expect there to be debate about the scope of the holding, with some arguing that the decision imposes an outright obligation on hospitals to preserve paper medical records for patients, especially those who experience a bad outcome.

We interpret the court’s holding to be somewhat narrower, particularly when viewed in light of the particular facts of the case. Saint Mary’s received a letter instructing it to preserve any and all records related to Mr. Peters, including the original, paper chart. Not only did Saint Mary’s receive this request before it shredded the records, it agreed to maintain the paper chart. One can argue that these facts limit the duty to preserve paper medical records.

It is likely wise, however, for Arkansas hospitals to (1) adopt, and consistently follow, document retention policies; (2) refrain from destroying a patient’s paper medical records upon receipt of a formal notice of a possible claim; and (3) consider keeping a patient’s paper medical records for a certain period of time if the patient or is or her family members or visitors mention, even casually, the prospect of a lawsuit following an unexpected or poor medical outcome.

Written by:

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.
Contact
more
less

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.