Legal Eagle Eye Newsletter for the Nursing Profession(4)2 Nov 95
Quick Summary: When the pertinent nursing or medical documentation has been lost, destroyed or tampered with, health care providers must prove they were not negligent in order to avoid legal liability. That is, spoliation of the evidence reverses the usual rule that the patient/plaintiff has the legal burden of proof in a malpractice case.
This case has been the subject of at least three published opinions of the Alaska courts. (Legal Eagle Eye Newsletter, Vol. 3, No. 7, April, 1995). The Supreme Court of Alaska's latest opinion states that loss or destruction of documentation, in this case the nursing records of a complicated course of events in a hospitals pediatric intensive care unit, results in a presumption that the medical care providers were negligent in rendering care.
In general, it is for the alleged victim of medical, nursing or other alleged negligence in the health care setting to prove that the providers were negligent. However, the court ruled in this case, after reviewing pertinent case precedents from other states whose courts have ruled on the issue, that when the pertinent medical or nursing documentation has been lost, destroyed or tampered with, the defendant health care providers must prove they were not negligent in order to avoid legal liability.
In the latest opinion, the court said that it does not matter whether the pertinent documentation was destroyed negligently or intentionally. Either way, if the records are missing at the time of trial, the health care providers will be presumed negligent by the court, and will be liable for payment of an award of damages, unless the health care providers can come forward and convince the judge and jury that they were not negligent.
The court modified its previous ruling, which had said that the health care provider is automatically negligent when "spoliation" of the records occurs. The providers are now allowed to come forward and try to prove they were not negligent. As a practical matter, however, in the absence of documentation, it would be very difficult for a provider to actually do this. Sweet vs. Sisters of Providence, 895 P.2d 484 (Alaska, 1995).
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