89 N.E.3d 1102
Ind. Ct. App.2017Background
- On March 24, 2013 Shirey became a patient of Dr. Rex Flenar and was injured in a car accident on March 30, 2013; her attorney requested her medical records on April 25, 2013.
- Shirey alleges multiple follow-up requests went unanswered over three years; Flenar later said his EMR vendor (AllScripts/MyWay) cut off access and ultimately destroyed the records.
- Shirey sued in August 2016 alleging (1) a private right of action under Ind. Code § 16-39-1-1(c) for failure to supply records, and (2) an alternative claim for third-party spoliation because loss of records impaired her personal-injury case.
- Flenar moved for summary judgment, primarily arguing no private cause of action exists and that public-policy concerns defeat spoliation; his designated evidence was his affidavit about the EMR vendor.
- The trial court granted summary judgment to Flenar on both claims; Shirey appealed.
- The appellate court affirmed dismissal of the statutory claim but reversed on spoliation, holding Flenar owed a duty to preserve once Shirey (through counsel) requested the records and remanding for further proceedings on breach, causation, and damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ind. Code § 16-39-1-1(c) creates a private right of action to compel production of medical records | Shirey: the statute gives patients a right to records and implies an enforceable private remedy | Flenar: statute provides no private cause of action; enforcement lies with State Department of Health and related statutory scheme | Court: No private right of action under § 16-39-1-1(c); affirm trial court on statutory claim |
| Whether a common-law third-party spoliation claim lies where a provider loses/destroys patient records after a records request | Shirey: provider had duty to preserve once records were requested; loss impaired her tort claim | Flenar: public policy, speculative damages, no bad faith, and alternative remedies counsel against recognizing third-party spoliation | Court: Recognizes third-party spoliation duty here; duty established under Webb factors (relationship, foreseeability, public policy); reverse summary judgment and remand for breach, causation, damages |
Key Cases Cited
- Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349 (Ind. 2005) (distinguishes nonrecognition of first-party spoliation and leaves open third-party spoliation)
- Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182 (Ind. 2011) (no private right of action under medical-record retention statute)
- Thompson ex rel. Thompson v. Owensby, 704 N.E.2d 134 (Ind. Ct. App. 1998) (recognizes negligent third-party spoliation where duty to preserve is shown)
- Glotzbach v. Froman, 854 N.E.2d 337 (Ind. 2006) (discusses public-policy limits on third-party spoliation and alternative remedies)
- Doe #1 v. Ind. Dep’t of Child Servs., 81 N.E.3d 199 (Ind. 2017) (statutory enforcement mechanism precludes courts from engrafting private remedy)
- Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991) (establishes three-factor duty analysis applied to spoliation: relationship, foreseeability, public policy)
- Megenity v. Dunn, 68 N.E.3d 1080 (Ind. 2017) (standard for reviewing summary judgment)