Sweet v. Sisters of Providence in Washington

Supreme Court of Alaska · Torts

Tortsmedical malpracticespoliation of evidenceinformed consentexpert testimonyspoliationmissing medical recordsburden shifting

Facts

Jacob Sweet allegedly suffered severe brain injury while being treated at Providence Hospital after a circumcision and subsequent infection concerns. During discovery and trial, several nursing records from the critical day of his treatment could not be located, though other medical records remained available. The Sweets claimed the missing records prevented them from proving medical negligence and sought relief based on spoliation. They also claimed the defendants failed to obtain informed consent for the circumcision and argued that a hospital regulation requiring signed informed consent established the standard of care.

Issue

When a hospital loses essential medical records relevant to a malpractice claim, must the burden of proof shift only on duty and breach, or also on causation? May the plaintiff also pursue a separate tort theory for negligent spoliation in that circumstance? And did the trial court properly refuse to treat a regulation requiring signed informed consent as a possible negligence-per-se standard without first conducting an evidentiary hearing?

Rule

If a plaintiff first establishes to the trial court's satisfaction that the absence of essential medical records, missing through the negligence or fault of the health care provider, sufficiently hinders the plaintiff's ability to establish a prima facie malpractice case, a rebuttable presumption arises shifting the burden of proof to the provider to prove the nonexistence of negligence and causation, unless the failure to maintain the records is excused. This presumption affects the burden of proof and does not vanish upon mere production of contrary evidence. In this context, burden shifting is an adequate remedy for negligent spoliation by a party to the underlying suit. A court may reject a statute or regulation as the negligence-per-se standard only on an adequate factual basis, including whether the rule is obscure or unknown.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a hospital in Portland, Oregon, Lena Ortiz sued the hospital for malpractice after complications during a bowel surgery. The hospital misplaced the circulating nurse's notes, but Lena still has the surgeon's operative report, anesthesia record, medication log, post-op monitoring sheets, and lab results; her expert can identify a specific negligent dosage error from the remaining records alone.

Should the court apply the rebuttable presumption shifting the burden of proof to the hospital on negligence and causation?

Explanation. The presumption arises only after a threshold judicial finding that essential medical records are missing through the provider's negligence or fault and that their absence sufficiently hinders the plaintiff's ability to establish a prima facie case. Here, substantial records remain and Lena's expert can still make out the claim from those records, so the required hindrance showing is missing. The majority rejected any automatic rule triggered by every missing record.