Appellate Court Affirms Refusal by Trial Court to Issue Adverse Inference Instruction Regarding Allegedly Altered Medical Records in Med Mal Case

In the case of Cragle v. O’Brien, 2019 Pa. Super. 360 (Pa. Super. Dec. 20, 2019 Gantman, P.J.E., McLaughlin, J., and Ford Elliot, P.J.E.) (Op. by McLaughlin, J.), the Pennsylvania Superior Court ruled that a medical malpractice Plaintiff was not entitled to an adverse inference instruction relative to the alleged destruction of medical records.  The judgment entered below in favor of the Defendants was affirmed.

The appellate court more specifically noted that it agreed with the trial court that the Plaintiff had failed to expressly request the standard jury instructions for alteration or destruction of medical records. The Superior Court additionally noted that the Plaintiff failed to ensure that a transcript of the charging conference was included in the certified record on appeal. 

The appellate court also appointed to the fact that the Plaintiff had failed to submit a proposed jury instruction for the applicable statute to the trial court below. 

Lastly, the appellate court reiterated that, in any event, the parties all agreed that the events described in the allegedly altered portion of the doctor’s office notes never happened. 

Anyone wishing to review a copy of this case may click this LINK.

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Jan. 7, 2020).

ARTICLE: "Trial Court Erred in Refusing to Give Adverse Inference Instruction After Videotape Lost"

Here is a LINK to an article of mine entitled "Trial Court Erred in Refusing to Give Adverse Inference Instruction After Videotape Lost" which was recently published in the Civil Litigation Update Vol. 22, No. 3 (Summer 2019) issued by the Civil Litigation Section of the Pennsylvania Bar Association.

The article analyzes the Pennsylvania Superior Court's latest analysis of the law surrounding spoliation of evidence as set forth in the Court's recent decision in the case of Marshall v. Brown's IA, LLC (June 19, 2019). 

The Brown case involved a slip and fall case in which the Defendant Supermarket failed to produce the entirety of a surveillance tape that depicted the Plaintiff's incident.

Adverse Inference Sanction Granted Due to Spoliation of Fire Scene

In the case of Dyvex  Industry v. Agilex Flavors & Fragrances, Inc., No. 12 - CV - 0979 (M.D. Pa. Feb. 27, 2018 Mannion, J.), the court granted a defense Motion for an  Adverse Inference Spoliation Sanction under a finding that the Plaintiff had spoliated a fire scene in a products liability suit.  

According to the Opinion, the Plaintiff had identified the Defendant’s product as a likely cause but went ahead with the demolition of the fire scene without giving the Defendant an opportunity to inspect.   The court also noted that the Plaintiff had informed the Defendant that the scene was being preserved, at which point demolition had already begun.  

The court found that the Defendant was prejudice by the destruction of potential alternative cause evidence.  

While the court noted that there was no blanket rule that a Plaintiff must always preserve an entire fire scene, here, there were no exigent circumstances requiring any alteration of the scene, such as safety hazards.   The court therefore found that the fault on this issue largely lay with the Plaintiff for disturbing the fire scene without notice to the defense.  

The court found that dismissal was not appropriate as the prejudice to the Defendant was partially mitigated by photographs and preservation of some evidence from the scene.

As such, the court found that the Plaintiff’s partial failure to preserve evidence was punishable with an adverse inference instruction.  

Anyone wishing to review a copy of this decision may click this LINK.  The Court's Order can be viewed HERE.

I send thanks to Attorney James M. Beck of the Reed Smith law firm in Philadelphia for bringing this case to my attention.