Phillips v. Harmon – Spoliation of Evidence in Medical Malpractice Lawsuit


Spoliation of evidence in civil litigation is known as the intentional, negligent or reckless withholding of relevant information or evidence, either by hiding it, altering it or destroying it.

If one party in a civil case is found to have engaged in spoliation, it may be subject to a series of corrective measures. This may include something called a “spoliation inference,” which means the court will be allowed to assume that the evidence would have worked in the other party’s favor. In some extreme cases, the court may even choose to grant summary judgment on the issue of liability in favor of the non-offending party.

It’s an egregious violation because without corrective action, it could prevent one side from having the opportunity to fairly represent his or her case.

The issue of spoliation became central to a case recently before the Georgia Supreme Court. In Phillips v. Harmon, the court was asked whether defendants in this medical malpractice action had a duty to preserve evidence, even though they had no actual notice of a claim or litigation. The court ruled no actual notice of a claim or litigation is required for defendants to preserve evidence, and the case has been remanded for retrial.

According to court records, the case began with the birth of a baby who was allegedly deprived of oxygen shortly before birth, resulting in blindness, spastic quadriplegia, permanent neurological disabilities and an inability to speak. Plaintiffs alleged negligence on the part of a certified nurse midwife, an OBGYN and the medical center contributed to his condition.

Case went before a a jury, which rendered a verdict for defendants after 1.5 days of deliberations. Plaintiffs sought a new trial.  In that motion, they noted trial court’s engaging in communication with jurors when neither side nor their attorneys were present and by refusing to give an instruction on spoliation of evidence. Trial court denied the motion and court of appeals affirmed as to the spoliation direction, but reversed on the issue of trial communication with jurors; specifically, trial court responded to a note from jury during deliberations without advising counsel of that communication. A new trial was ordered.

An appeal to the Georgia Supreme Court followed. The court affirmed on the issue of a new trial.

However, it reversed on the spoliation issue, finding trial court should have given an instruction on this point.

In order for an injured party to seek remedy for spoliation, the party that destroyed/altered the evidence had to have owed a duty to preserve that evidence.

Here, the evidence in question was printed paper strips of the electronic monitoring of the baby’s heart rate. Part of plaintiff’s assertion was defendants were negligent in monitoring and responding to the baby’s heart rates during periods of fetal distress. When this kind of distress is acute, it can cause brain damage due to lack of oxygen.

Generally, the medical center would keep these strips 30 days after a delivery and then routinely destroyed them. That’s what happened to these strips.

However, in addition to the strips themselves, there were nurse notations on those strips plaintiffs asserted were timely. They indicated the timeliness of the medical response to the fetal distress. They were not only relevant, they were arguably critical to plaintiff’s case in proving defendants breached the applicable standard of care.

Because they’d been destroyed, plaintiff requested the judge give a spoliation instruction, indicating the hospital had destroyed this critical evidence and giving plaintiff the presumption that this evidence would have been prejudicial to defendants.

Trial court declined to do this because it indicated the hospital had no duty to preserve the evidence because it hadn’t been given notice of a lawsuit. But duty to preserve does not only come from formal notice of litigation, the state supreme court ruled.

At the time those records were destroyed, hospital already was considering the possibility of litigation, as it had immediately launched an internal investigation, questioned involved personnel and notified its insurance carrier. When this process was triggered, plaintiffs argued, the hospital had a duty to preserve that evidence.

State supreme court agreed.

That means that when this matter goes once again before a jury, a spoliation instruction will be given to the jury.

If you have been injured in Naples, contact the Hollander Law Firm at (561) 347-7770 for a free and confidential consultation. There is no fee unless we win.

Additional Resources:

Phillips v. Harmon, June 29, 2015, Georgia Supreme Court

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