The Commonwealth of Kentucky Court of Appeals (“Kentucky Appellate Court”) stated in its unpublished opinion dated September 18, 2020 in a case where the Kentucky medical malpractice jury returned its verdict in favor of the defendant doctor and the defendant hospital: “the record is silent as to the extent of Judge Lape’s Facebook friendship with Dr. Swikert. Are they simply Facebook friends who are only vaguely familiar with each other or are they neighbors who routinely socialize with one another? While we doubt it is the latter, we do not have any information regarding the scope of the friendship. Since we must look at the connections between Dr. Swikert and Judge Lape individually, as well as collectively, we cannot say for certain if Judge Lape should have disclosed this information or recused herself; therefore, we must reverse and remand for more information. On remand, Judge Lape must indicate what level of friendship she has with Dr. Swikert and analyze it collectively with the campaign issues [Dr. Swikert and his wife co-hosted a fundraiser during Judge Lape’s judicial campaign. Dr. Swikert contributed $200 to Judge Lape’s campaign].”
The plaintiffs argued that because the Good Samaritan hospital records requested and obtained by nondefendant Dr. Bradley were missing from Mr. Andress’ St. Elizabeth family practice records, and there is no good explanation as to what happened to them, the spoliation instruction was warranted. The trial judge refused, explaining that the spoliation instruction was not warranted because the evidence presented suggested that the records were lost at the time of Mr. Andress’ visit to the St. Elizabeth Family Practice Center and not after his death when the defendants might have anticipated litigation.
The Kentucky Appellate Court stated, “We do not believe the trial court abused its discretion in declining to give a spoliation instruction; however, we come to this conclusion based on other grounds … There was no clear evidence what happened to the medical records at issue or when they went missing. Dr. Bradley and Dr. Swikert only speculated as to what happened to the records. There was no evidence presented one way or the other, as to what actually happened to the records or when they went missing, only speculation; therefore, it should have been up to the jury to decide this factual dispute. We still believe the trial court correctly declined to give a spoliation instruction, albeit for different reasons, because the missing records were not in the absolute or exclusive care, custody, and control of St. Elizabeth and Dr. Swikert. The records were also available from Good Samaritan. In fact, Appellants used the Good Samaritan records to question the witnesses. Appellants were able to question witnesses about whether Dr. Bradley and Dr. Swikert acted appropriately assuming they had certain Good Samaritan records. Seeing as Appellants obtained the missing records from another source and were able to question witnesses about these records, there was no need for a spoliation instruction.”
A dissenting appellate judge disagreed: “While I agree with the analysis of the majority in determining that the when, where, and how the medical records received from Good Samaritan went missing from Mr. Andress’ file should be resolved by the jury, I do not agree with the ultimate opinion finding that having the original of the records from Good Samaritan made the spoliation instruction unnecessary … Appellees argue that because Appellants obtained the complete records from Good Samaritan, there is no harm in those same records having not been maintained as part of Mr. Andress’ record from St. Elizabeth. This argument could hold water if Appellees had agreed to stipulate that they had received all the records from Good Samaritan. St. Elizabeth was unwilling to so stipulate. St. Elizabeth wanted to be able to claim they relied on test results and records provided from Good Samaritan in their treatment of Mr. Andress but not have to acknowledge receiving records that may be harmful to their case. Essentially, Appellees seek to have their cake and eat it, too. For the trial court to so concede is an abuse of discretion and the spoliation instruction should have been submitted to the jury.”
Source Andress v. St. Elizabeth Medical Center, Inc., No. 2019-CA-000347-MR.
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