Legal Alert Consequences of the Failure to Maintain Medical Records

THE STATUTE: INDIANA CODE § 16-39-7-1
Indiana law requires providers to furnish medical records to a patient upon request. Further, Indiana Code § 16-39-7-1(b) requires that healthcare providers “maintain the original health records or microfilms of the records for at least seven (7) years.” The statute goes on to state that a violation of the statute can lead to disciplinary action against a provider’s license, registration, or certification. However, providers are immune from civil liability if the failure to maintain records is a result of a disaster, unless it was due to negligence. But, the question remained, is there civil liability for a provider who fails to maintain records as a result of something other than a disaster? The Court of Appeals recently addressed that issue in Shirey v. Flenar (02A03-1704-MI-876).

CONSEQUENCES OF SHIREY V. FLENAR
On December 21, 2017, the Indiana Court of Appeals issued an opinion which trial courts will likely look to in determining whether civil liability attaches to the failure to maintain medical records.

In this case, after Shirey was injured in a car accident, she sought treatment from Dr. Flenar for her injuries. Shirey filed a personal injury lawsuit in relation to the car accident and her lawyer asked Dr. Flenar for her medical records. Dr. Flenar had maintained the records electronically and the records were destroyed by his medical-record software provider, so he was unable to provide Shirey with the medical records. As a result, Shirey sued Dr. Flenar, claiming that she had a private right of action under Indiana Code § 16-39-1-1, which requires a healthcare provider to supply a patient’s medical records upon request by the patient. The Court of Appeals held that Shirey had no right to sue Dr. Flenar under this statute and therefore, she had no civil remedy via that provision of Indiana Law. However, Shirey also asserted that, to the extent Dr. Flenar lost or destroyed the records, she had a claim for third-party spoliation of evidence because, without the records, she was unable to fully substantiate her personal injury claim stemming from the accident. The Indiana Court of Appeals agreed with Shirey’s argument. The Court concluded that Dr. Flenar had a duty to preserve the records and was therefore properly subject to a cause of action for spoliation. As such, Shirey could pursue a cause of action against Dr. Flenar for the failure to maintain her medical records.

This case suggests that the Court will likely take an expansive approach in allowing plaintiffs to sue healthcare providers for the failure to maintain medical records outside of a disaster as outlined in the statute. The extent of the damages that could be recoverable is unknown, although there has been some indication that plaintiffs could seek the difference between the amount they could have recovered and the amount they actually recovered. For example, if in a personal injury lawsuit, the driver who caused the injury had an insurance policy for $100,000 and the plaintiff only recovered $75,000 for her injuries, she could sue the healthcare provider for $25,000 by alleging that the full amount could have been recovered but for the healthcare provider’s failure to maintain the medical records.

WHERE TO FIND MORE INFORMATION
A copy of the Court’s opinion can be found at: https://www.in.gov/judiciary/opinions/pdf/12211702nhv.pdf.

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