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ATTORNEYS FOR APPELLANTS Bryan H. Babb Kelly M. Scanlan Indianapolis, Indiana Milford M. Miller Fort Wayne, Indiana ATTORNEYS FOR AMICUS CURIAE Defense Trial Counsel of Indiana R. Thomas Bodkin James D. Johnson Evansville, Indiana

ATTORNEY FOR APPELLEE John F. Muller Indianapolis, Indiana ATTORNEYS FOR AMICUS CURIAE Indiana Trial Lawyers Association Steven L. Langer Valparaiso, Indiana Tara M. Wozniak Indianapolis, Indiana

FILED
In the
Aug 10 2011, 11:34 am

Indiana Supreme Court
_________________________________ No. 34S02-1009-CV-476

of the supreme court, court of appeals and tax court

CLERK

HOWARD REGIONAL HEALTH SYSTEM d/b/a HOWARD COMMUNITY HOSPITAL, CHARLES G. MARLER, M.D., and COMMUNITY FAMILY HEALTH CENTER, Appellants (Defendants below), v. JACOB Z. GORDON b/n/f/ LISA GORDON, Appellee (Plaintiff below). _________________________________ Interlocutory Appeal from the Howard Superior Court 2, No. 34D02-0609-CT-0782 The Honorable Rosemary Higgins Burke, Senior Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 34A02-0902-CV-179 _________________________________ August 10, 2011

Shepard, Chief Justice. Jacob Gordon`s mother sued Howard Community Hospital, alleging it committed medical malpractice while caring for her son. In another count of the complaint, she sought separate damages for spoliation, saying the Hospital had lost certain medical records associated with Gordon`s care and that this loss made it impossible for Gordon to pursue a medical malpractice claim against one of his doctors, who was also a defendant.

As we explain below, many of the considerations that led us to decline to recognize firstparty spoliation in Gribben v. Wal-Mart Stores, Inc., and to decline to recognize third-party spoliation in Glotzbach v. Froman in the context of workers` compensation, apply here.

Facts and Procedural History On January 6, 1999, Lisa Gordon was admitted to Howard Community Hospital in labor.1 Dr. Richard A. Gard had provided Lisa`s prenatal care. He delivered Jacob Gordon by caesarian section after determining the baby was in a breech position, on January 7, 1999, at 2:30 p.m. Sometime thereafter it became apparent that Jacob suffered from numerous serious disorders. The Gordons believe that Jacob`s conditions may have been caused by substandard medical care at the time of his birth.

Counsel for Lisa Gordon first requested medical records from the Hospital in December 2003 and then on into 2004. Counsel made additional requests after it became apparent that there were gaps in the medical records turned over.

The actual legal entity is Howard Regional Health System. We will sometimes call it Howard Regional or Howard Community or simply the Hospital.
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In September 2005, the Gordons filed a complaint for damages with the Indiana Department of Insurance as required by the Medical Malpractice Act. The complaint named Howard Regional as the sole defendant and alleged that one of the hospital nurses did not conform to the applicable standard of medical care, causing damage to Jacob Gordon.

On March 27, 2006, the Gordons filed a motion to compel discovery in Howard Circuit Court. The Hospital filed affidavits dated June 5, 2006, stating that some of the records could not be located. The missing records included nursing and narrative notes from 7:45 p.m. January 6 through 2:30 p.m. January 7; labor flow records from 6 a.m. through 2:30 p.m. January 7; fetal heart monitor strips from 5:52 a.m. through 2:30 p.m. January 7; and peri-operative nurses` notes from the caesarian section performed on January 7. (App. at 51.)

In September 2006, the Gordons filed an amended complaint naming three additional defendants: Dr. Gard, Dr. Charles G. Marler, and Community Family Health Center. This new complaint enumerated five counts: Count I, medical negligence against Howard Regional; Count II, third-party spoliation of evidence against Howard Regional; Count III, medical negligence against Dr. Gard; Count IV, medical negligence against Dr. Marler; and Count V, vicarious liability against Community Family Health Center.

The Gordons moved for partial summary judgment against Howard Regional only with respect to Count II, the third-party spoliation claim. In support, they tendered the affidavit of a neonatologist retained by the Gordons stating she could not determine whether the standard of care was met because of the missing medical records. Howard Regional responded to that motion and likewise filed a cross-motion for partial summary judgment. After a hearing on these cross-motions, the trial court granted the Gordons partial summary judgment and authorized an interlocutory appeal by Howard Regional. The trial court concluded that Howard Regional had a duty to maintain the Gordons` medical records at least through the time of the Gordons` records request. It also concluded that under Indiana law a separate cause of action for failure to maintain these records existed and that the Hospital had breached its duty to maintain records under Indiana Code Section 16-39-7-1. 3

The trial court held that Howard Regional ha[d] created a significant gap in the records that would allow a medical panel or a factfinder to determine whether the care that was provided . . . met the relevant standard. (App. at 200

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