The Georgia Supreme Court in Phillip v. Harmon, 2015 WL3936826 (June 29, 2015), recently held that a party may be under the duty to preserve evidence to avoid a charge of spoliation even if a plaintiff does not send a preservation letter, if the party may be reasonably aware the litigation is foreseeable based solely on the party’s own conduct.

The Court stated that relevant circumstances of when a party should be aware litigation is foreseeable include the type and extent of injury; the extent to which fault for the injury is clear; the potential financial exposure if faced with a finding of liability; the relationship and course of conduct between the parties; and the frequency with which litigation occurs in similar circumstances.  The Court continued that what a defendant did or did not do in response to an injury, including the extent of an internal investigation, can be evidence that the defendant saw that litigation was reasonably foreseeable and therefore had a duty to preserve the evidence.

However, the Court noted that a jury instruction on spoiliation should be done “only in exceptional cases” and “that the greatest caution must be exercised in its application.”   The Court continued that a trial court should consider both prejudice to the party seeking the charge and whether the party who destroyed the evidence acted in good or bad faith.  The Court concluded a party should only be penalized for destroying documents if it was wrong to do so.

The specific facts of this case concern the routine destruction thirty days after delivery of the paper copy of the electronic fetal monitor strips on which nurses sometimes physically write on the paper copy.  The hospital preserved the electronic copy of the strip.  Plaintiff argued that because the hospital investigated the severe neurologic injury to the baby at delivery, litigation was reasonably forseeable and therefore, the hospital had a duty to preserve the fetal monitor strip, even though not yet requested by the Plaintiff.

Based on the decision, it appears the safest course of action is that whenever a defendant medical provider institutes any sort of peer review action or investigation into an adverse outcome, the hospital should preserve all evidence relating to the matter.  Likewise, even without an investigation, if there is a death or significant injury, the defendant medical provider should preserve information related to the acts.

 

Richard Tisinger, Jr.