October 31, 2011
On Halloween, we get to bring you a macabre story regarding whether a plaintiff was obliged to notify a defendant that it was going to perform an autopsy on an infant that died as a result of medical malpractice. In
Alsheik v. Guerrero, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 45A04-1011-CT-680, the Court of Appeals held that the plaintiff had no duty to notify under the circumstances. What were those circumstances? Read on.
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In this medical malpractice case, a doctor performed a surgery on a 13-month old boy to treat an undescended testicle. Two days later, the child died. An autopsy was performed by the county coroner, but the coroner did not dissect the surgical site, despite being contacted by the doctor. The coroner listed the cause of death as "vascular collapse undetermined cause."
After the plaintiff filed a proposed complaint with the Indiana Department of Insurance and answered interrogatories, the plaintiff's attorney arranged to have a second autopsy performed. The second autopsy revealed the following:
He found that the left spermatic cord was dislocated at a 90-degree angle, causing an L-shaped "kink" in the cord, and which resulted in a loss of blood supply in I.A.'s left spermadic cord, tip of his penis, left testicle and scrotum leading the surrounding tissue to become necrotic. In light of I.A.'s surgery immediately prior to his death, Dr. Bryant opined that this kink could only have resulted from the placement of a suture by Dr. Alsheik at the time of surgery. He stated that "the left testicle died before [I.A.] actually died."
The defendant vigorously opposed the plaintiff's ability to rely on the results of the second autopsy, complaining that he was not given notice that the second autopsy would take place and that the act of performing the second autopsy destroyed evidence, which prevented the doctor from conducting the same physical examination. When the case eventually went to trial, the trial court overruled the defendant's objections. A verdict was entered for the plaintiff.
On appeal, the Court held that the trial court did not abuse its discretion by admitting this evidence. It held that the plaintiff was not required to notify the defendant of the second autopsy because there was no discovery request or order that required him to do so.
The evidence reflects that at the moment the second autopsy was performed, discovery by way of interrogatories and depositions was on-going between the parties. Specifically, Dr. Alsheik had "asked in discovery to produce all photographs and records." Guerrero's responses "to all [his] requests" were submitted on March 17, 2003. ... The record is devoid of any evidence reflecting that Dr. Alsheik had requested to be notified of any intent to exhume and autopsy I.A.'s body prior to the second autopsy, nor does Dr. Alsheik present us with a motion for the trial court to issue a protective order pursuant to Ind. Trial Rule 26(C), requiring that a possible second autopsy could only be performed on specified terms and conditions. Because there was no existing defense interrogatory or protective order at the time of the second autopsy, we conclude that Guerrero was not required to provide Dr. Alsheik with notice of the autopsy.
The act of performing the second autopsy did not constitute spoliation because the doctor did not present sufficient evidence to prove spoliation.
We decline to find that Dr. Bryant intentionally destroyed evidence during the autopsy. Alsheik failed to establish that Dr. Bryant's destruction of the sutures was done for any reason other than the standard practice of investigative purposes, i.e., opening up the incision wound during an autopsy to evaluate if anything had gone wrong during surgery. There is no evidence that Dr. Bryant's action was done negligently or intentionally to suppress the truth; rather, the opposite occurred: Dr. Bryant cut through the sutures to exclude any other possible cause of death than the one he opined.
Finally, the Court reaffirmed its recent decision in
Wisner v. Laney, 953 N.E.2d 100 (Ind. Ct. App. 2011), in which it held that an offer made presuit could qualify under the prejudgment interest statute.
Lessons:
- If you want to know when the opposing party is conducting a physical examination of evidence that could destroy the evidence, then you should request a protective order.
- in order to prove spoliation, you need to present evidence that destruction of evidence was done for an invalid reason.
- Prejudgment interest may be awarded, even if the offer occurs presuit.
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