Penalty for Destroying Medical Records in Maryland and Indiana?

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Unless you are in the health care profession or dealing with the health care profession, it is hard to appreciate the deference given to medical records. Doctors believe – correctly in most cases – that looking at a patient’s medical records can tell you exactly what should come next in the care and treatment of that patient.
In spite of this, the Indiana Supreme Court wants to impose liability on doctors and hospitals for losing medical records, rejecting the idea of a medical malpractice claimants’ tort for losing the records themselves.

This opinion was the result of a medical malpractice claim filed by a woman who had complications after her son’s emergency cesarean birth in 1999. The Plaintiff brought a separate damages claim against the hospital for losing the records, which made it difficult to bring a birth injury claim against her obstetrician.

The court noted in its opinion how critical medical records are to good patient care and that keeping accurate records reflects on the treatment and diagnosis of patients. But the court was reluctant – understandably reluctant, I appreciate that – to allow malpractice plaintiffs to bring a tort for the loss of medical records. But the problem is that the rule discourages accountability and completely destroys the plaintiff in a case where they are bringing a claim against someone other than the health care provider that keeps the records. (If the party that destroyed the records is also the target defendant in that case, the aggrieved malpractice plaintiff can claim spoliation of the records that may lead to a jury instruction that the lost records should be interpreted in the most favorable light for the plaintiffs’ case.

Ultimately, if it’s not through a separate tort claim, there must be some mechanism to instill in healthcare providers the importance of keeping and maintaining accurate and complete medical records. If there is no incentive to keep accurate records, you will see a lot more instances of injustice like the one that occurred in this case.

Note: Maryland also does not allow for a separate tort for failure to keep medical records. Maryland doctors are, however, required unless a patient is notified, to keep medical records or laboratory or x-ray reports about a patient for five years. (There is a different rule for minors.) But if this does not happen, the patient has no real recourse against the doctor.