The Court of Appeals recently provided clarity relating to spoliation of evidence in a medical malpractice case. To meet the standard for proving spoliation, an injured party must show that the alleged tortfeasor was put on notice that the party was contemplating litigation, not just notice of potential liability. This is a key difference in the medical field because this allows medical equipment to be replaced when a doctor only has notice of potential liability. Under this standard, the doctor would not be subject to penalties relating to spoliation.
In Hand vs. South GA Urology Ctr, P.C. (A14A1854) (March 16, 2015), plaintiff sued a urologist and his practice group for malpractice, alleging that the urologist breached the standard of medical care in treating their enlarged prostate and that breach resulted in serious injuries. The urologist, Dr. Gilbert Gonzalez, argued that the medical equipment he used malfunctioned and that caused the injury. Additionally, he stated that he only used it 1-2 more times afterwards until losing faith in the machine. During trial, the machine was turned on and it was discovered that it was used 5-6 more times; however, this evidence was not included as evidence due to questions of admissibility. On appeal, the evidence was admitted based on state law policy to admit evidence, even if its admissibility is doubtful, because it is more dangerous to suppress the truth than to allow a loophole for falsehood.
The second issue arose out of the equipment manufacturer replacing the machine after the injury. The trial court gave a jury instruction that included spoliation in regard to the machine being changed. Court of Appeals ruled that this instruction was invalid because Dr. Gonzalez was not on notice of litigation and the simple fact that someone is injured is not sufficient to trigger the rules of spoliation. With the new jury instructions and evidence allowed, the case was remanded for new trial.
The attorneys at Buckley Christopher & Haff are available to assist you and your company in ensuring that your employment practices are within the bounds of the law and to represent you if litigation arises. Please contact one of our attorneys for more information.