To prove a “spoliation of evidence” claim relating to an Illinois medical malpractice action, the plaintiff (and his or her Chicago medical malpractice lawyer) must show that “but for” the missing evidence, it had a “reasonable probability of succeeding” in the underlying medical malpractice case. Midwest Trust Services, Inc. v. Catholic Health Partners Services, No. 1-06-2257 (June 8, 2009).
In Midwest Trust, the estate of a man who died of a heart attack about 48 hours after he underwent cervical fusion surgery brought an Illinois medical malpractice lawsuit against the hospital and doctors. The estate also filed a “spoliation of evidence” claim, alleging that the hospital failed to preserve an “occurrence report,” which is typically created after a death at the hospital within 48 hours of surgery. The estate also alleged that the hospital failed to preserve “cardiac-monitoring strips” generated on the date the decedent was admitted to the hospital for surgery. The estate alleged that the failure to preserve this evidence impaired its ability to prove the underlying medical malpractice action.
The estate went to trial in its medical malpractice action. The jury returned a verdict in favor of two defendants, but was unable to reach a verdict against the remaining defendants and a mistrial was declared.
After the case was remanded, the estate amended its spoliation claim to assert that “but for” the defendant’s acts or omissions, it “would have prevailed” in the underlying medical malpractice case. The trial court granted the defendants summary judgment in favor of the hospital because it found that the loss of the cardiac-monitoring strips did not cause the estate to be unable to prove its medical negligence case. Even without this evidence, the plaintiff’s medical expert witness was able to render his standard-of-care opinions against the hospital.
On appeal, the appellate court stated that the “primary issue” in the spoliation action was whether the loss, destruction or altercation of the cardiac-monitoring strips prevented the plaintiff from proving its case against the hospital in the underlying medical malpractice action. The court held that the estate failed to show that “but for” the missing cardiac-monitoring strips, it had a “reasonable probability of succeeding” in its medical malpractice action against the hospital.
The appellate court found that the estate’s medical expert witness, a cardiologist, testified that after a review of the decedent’s medical records he had sufficient information to form an opinion based upon a reasonable degree of medical certainty that the hospital deviated from the standard of care, without reviewing the cardiac-monitoring strips. Accordingly, the appellate court held the trial court did not err in granting summary judgment in favor of the hospital.
Midwest Trust sets a difficult precedent for a Chicago medical malpractice lawyer to prove a spoliation claim in a lawsuit arising out of medical negligence. It also puts personal injury lawyers in a “Catch 22″, requiring them to either: (1) find a medical expert to give a standard-of-care opinion in a medical malpractice action, without potentially critical pieces of evidence that has been destroyed, and forego the spoliation action; or (2) forego the medical malpractice action (and do not retain a medical expert to give standard-of-care opinions), and proceed with the spoliation of evidence action under the “but for” standard.