What Happens when Evidence Disappears?

I have a long list of potential topics to write on for this page; and generally, I like to start with basics and build a solid foundation before moving on to more specific topics. From time to time, though, a new court opinion will come down; and it is worth taking space to tell you about it.

Such is the case with a recent New York opinion, Diane Hughes v. Dewitt Rehabilitation & Nursing Center, Daniel P. Klein, M.D. and Mary Molloy, N.P., 2016 NY Slip Op 32510 issued by the Supreme Court of New York County, NY (located in Manhattan) on December 19, 2016. This is one of those cases about which lawyers will say, “I wish I’d been there!” All things considered, Judge Alice Schlesinger issued a factual, reasoned, well-tempered opinion; but the picture she paints with her words gives a very instructive view of how not to handle evidence requests in a wrongful death or medical malpractice case.

This is not the final opinion in the case, so we don’t have the original pleadings; but the story, pieced together, is as follows. Diane Hughes is the administratrix of Emelda Hughes’ estate. She filed suit in 2014 in New York County against Dewitt Rehabilitation and Nursing Center, Dr. Daniel Klein and NP Mary Molloy, presumably for Ms. Emelda’s wrongful death or as a malpractice claim.

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The opinion notes that Ms. Emelda was a resident of Dewitt from 2012-2014, and the suit was filed the same year she died. Judge Schlesinger states from the case facts developed so far that Dewitt nurses used several means of communication to document and share information about the residents each shift. This opinion revolves around two of those items of documentation, the first identified as “communication books” and the second as “a series of binders” that covered the time Ms. Emelda was a resident.

Nurses left notes in the communication book at the end of each shift for the next shift’s nurses regarding individual residents’ issues. The “binders” had titles such as “Pressure Ulcers,” “Weekly Wound Report 2013-2014,” “Wound Rounds Attendance 2013 October to 2015 April,” “Wound Care Management,” and “Nosocomial Pressure Ulcers 2013.” These binders reportedly contained documentation about specific problems and specific residents.

During the discovery phase of the case (where each side asks questions, takes statements, produces documentation and expert opinions, etc.) at a deposition conducted on July 28, 2015, defense counsel for Dewitt had these binders in the room. Ms. Hughes’ attorney was allowed to photograph the covers of the binders but not read them. She used the photos she took to help her formally request the specific communication books and binders in writing on September 10, 2015, about 6 weeks after the deposition. Defense counsel replied 3 weeks later objecting, saying the request “for these very specific binders was ‘overboard (sic)and burdensome’.” On November 4, 2015, the court directed Dewitt to produce the material plus “any rules and regulations relevant to pressure ulcers and would care” within 30 days. Nothing happened.

On December 14, 2015, plaintiff’s attorney sent a follow up letter. Nothing happened until Dewitt’s attorney answered on January 13, 2016 saying there had been a change of administrators recently and could they have another 30 days to produce the materials? Extension granted. Still nothing happened.

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Plaintiff’s attorney sent a reminder letter on March 2, 2016 and several more thereafter. Dewitt changed attorneys and plaintiff’s counsel waited, giving the new attorney time to get up to speed on the case. She sent a written summary of matters and repeated the request on April 25, 2016. Finally, on May 23, 2016, defense counsel told Ms. Hughes’ attorney, “Our client unfortunately is not able to locate the requested binders nor does our client believe those binders contain any information regarding Emelda Hughes.”

At this point, Ms. Hughes’ attorney asked the court to rule that the defendants essentially “spoiled” the evidence in some way (losing it or intentionally misplacing it, possibly destroying it) and for sanctions. Subsequently Judge Schlesinger learned that Dewitt’s administrator (Scott Mair) had not just arrived in late 2014 as the previous attorney had stated in January but had been at Dewitt since 2010.

Mr. Mair and nurse Marie Lamour submitted affidavits to the court stating that the binders “were unfortunately lost” during a facility renovation at the end of 2015 – over 90 days after the formal request and approximately 140 days since the deposition. Both stated, interestingly, that the binders didn’t have anything relevant to Emelda Hughes anyway and Ms. Lamour said that communication books are discarded after 6 months of use (yet they were supposedly present at the deposition over 6 months after Ms. Emelda’s death.)

Judge Schlesinger’s opinion is remarkably calm and yet sharply pointed. She took apart the defense’s contentions and spelled out the factual and logical inconsistencies. Her order directs Dewitt to pay plaintiff’s attorney $1000 and, if this case does go to trial, she will issue a “missing documents instruction” to the jury.

Considering the potential sanctions she could have imposed, these are moderate and reasonable. Keep in mind, though, that there are grounds for unprofessional conduct complaints to the attorney, nursing, medical and nursing home administrator, licensing boards and those entities would likely impose discipline on at least several of the defendants involved in the matter.

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The moral of this story is that you do not intentionally mislead the other side of a case or a claimant. The moment you know a case is coming, or has been filed, collect and secure all documents, including policies relevant to the case. Don’t hide anything, don’t destroy anything and don’t lie about the contents. Your attorney can object to production on several grounds but if he/she suggests that the materials sprout legs and walk off somewhere, get yourself a new lawyer. That is unprofessional and unethical conduct, apt to get you in trouble not only with the court but with your professional board. Judges hate being lied to and these kinds of actions will destroy your side’s credibility with the jury, most likely ruining your case.

BJ Strickland

Beth J. (“BJ”) Strickland is from Tennessee. She is an RN with Bachelor’s and Master’s degrees in nursing and a Master’s degree in history from Vanderbilt University. She is also a licensed attorney with her Juris Doctor degree from the University of Tennessee. She has practiced nursing since 1976 and has experience in clinical nursing, administration and teaching in several clinical areas. She has practiced law in state and federal courts in Tennessee since 1996 with an interest in healthcare risk management, employment law and medical malpractice. She retired from the U.S. Army in 2015 as a Lieutenant Colonel. This article is not legal advice. It is offered only as information about nursing topics of interest. If you have legal questions, please speak with a licensed attorney in your area. Neither the author or the website publisher are responsible for any actions a reader may take based on material in this article or on this website.

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