When a Defensible Claim Goes Sour: Defending Spoliation of Evidence Claims -

Let us assume you have a credible defense to the negligence allegations as to the care and treatment provided by a doctor, hospital, medical group, or medical device manufacturer. For that matter, a claim or suit may not even be brought or filed against such medical care providers or manufacturers relating to patient care. However, consider a potentially relevant piece of evidence – x-rays, a chart, specimens, or a medical device – has gone missing and the plaintiff and/or a defendant has raised a spoliation of evidence issue in your case.

The Illinois Supreme Court recognized negligent spoliation of evidence as a cause of action which can be stated under existing negligence law in Boyd v. Travelers Ins. Co., 166 Ill. 2d 188 (1995). Subsequently plaintiffs' attorneys have increasingly turned to spoliation claims as a potential backdoor to recovery in questionable medical malpractice liability cases. While this is a developing area of the law, particularly for medical malpractice cases, we will examine the evolution of this theory as well as offer some practical points to defending these cases.