Pre-Suit Spoliation in Medical Malpractice Clarified

Spoliation is a concept in litigation that you never want asserted against your client. It can turn a seemingly defensible case into one where, as a defense attorney, you need to tell your client to resolve the case. When juries hear evidence about a party allegedly destroying relevant evidence, it creates doubt in the minds of jurors that your client is telling the truth. It is, quite frankly, an uphill battle to try a case when the other side gets to argue that your client nefariously spoliated evidence. The case of Phillips, IV v. Harmon, 760 S.E.2d 235 (2014) is a medical malpractice case involving alleged spoliation during the pre-suit phase. It provides further clarification on what duties a medical practitioner has in the every-day practice of medicine. Quite frankly, it’s a victory for the doctors, nurses, and hospitals in Georgia.

Spoliation refers to the “destruction or failure to preserve evidence that is necessary for contemplated or pending litigation.” It’s an obvious, bright line “no-no” when evidence is destroyed or not preserved during ongoing litigation. However, the inquiry is far more complicated when evidence is destroyed/not preserved during the pre-suit phase.

Harmon is a medical malpractice case involving the labor and delivery of Lee Phillips at Henry Medical Center. The plaintiffs filed suit against the OB-GYN, Henry Medical Center and others. Plaintiff alleged that due to the defendants’ negligence, her son suffered oxygen deprivation shortly before birth, resulting in an anoxic brain injury leading to severe/catastrophic permanent neurological injuries (spastic quadriplegia, blindness, and an inability to speak). The case proceeded to trial and a defense verdict was entered for the medical providers. The plaintiff filed a motion for new trial asserting a number of errors. Of particular relevance, the plaintiff alleged that the trial court improperly failed to give a spoliation jury charge arising out of the destruction of the paper version of the fetal monitoring strips. The trial court ruled that “Defendants had no knowledge or notice of potential litigation,” but did allow evidence and testimony concerning the notes made on the strip during the mom’s labor and delivery, the use of the paper strip in creating the official medical record, and the destruction of the strips.

On appeal, the following facts were before the Georgia Court of Appeals. At the time Phillips was delivered, the “official medical record” at Henry Medical Center was maintained in electronic format. The fetal monitoring strips printed to paper were not considered part of the official record, despite the fact that nurses took hand written notes on them and would refer back to them when completing the official record. The paper strips were maintained for 30 days after delivery and then discarded per Hospital policy. After Phillips’ birth, the hospital triggered its Sentinel Events/Medical Errors/Disclosures policies and procedures (“Sentinel Events”) and “began an internal investigation and then notified its insurance carrier and contacted counsel a short time later.” Plaintiff argued that the triggering of the Sentinel Events policy also triggered Henry Medical Center’s obligation to obtain and/or preserve evidence, including the strips “as needed in anticipation of possible [future] litigation.”

In evaluating these facts and arguments, the Court of Appeal began by noting that the trial court has “wide discretion” in resolving spoliation issues and that the Court of Appeals will not disturb such a ruling absent an abuse of discretion. The Court went on to note that a spoliation claim cannot be pursued unless the spoliating party was under a duty to preserve evidence. Importantly, the Court “emphasized that …the injured party must show that the alleged tortfeasor was put on notice that the party was contemplating litigation.” The Court further noted importantly that “[t]he simple fact that someone is injured …, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rule of spoliation. In other words, notice of potential liability is not the same as notice of potential litigation.

In affirming the trial court’s refusal to give the spoliation jury charge, the Court of Appeals noted of significance that Henry Medical “had not received any letters, calls, pleadings, or inquiries of any nature” from the plaintiff that might have alerted Henry Medical that the plaintiff was contemplating litigation. The Court refused to allow the invocation of the Sentinel Events policy to serve as such a “notice.” Specifically, the Court appropriately noted that “launching an internal investigation and taking certain steps pursuant to company policies do not, without more, equate to notice that litigation is contemplated….”

What should medical providers (and their insurance carriers) take away from this case? First, medical providers should continue to practice medicine as they always have. They should ensure that they always follow internal policies and procedures to the letter when there is a bad outcome (and the carrier should try to make sure that this happens once the carrier is on notice and becomes involved). Second, providers (and their insurance carriers) should be acutely sensitive to and aware of any communications from their patient (or patient’s attorney) after a bad outcome/event. One Georgia opinion (Kitchens v. Brusman, 303 Ga. App. 703 (2010)) allowed a spoliation charge after a pathology tissue block went missing pre-suit, when there was evidence that the decedent’s spouse’s attorney had sent a request for the tissue block.

For more information on spoliation/avoiding spoliation sanction, do not hesitate to reach out to me ( or 404.881.2636) as I am always willing to help in any way I can.