Litigation: Does Destruction of Paper Fetal Monitor Strips with Nurses’ Notes Equal Spoliation?

October 1, 2015 | Healthcare Risk, Quality, & Safety Guidance

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The Supreme Court of Georgia granted a new trial ina malpractice case in which the trial court declined toinstruct the jury, as requested by the plaintiffs, that theymay consider whether the hospital had spoliated evidence—a paper fetal monitor strip. The infant plaintiffsustained spastic quadriplegia, blindness, and inabilityto speak, allegedly due to a delay in recognizing andresponding to sustained bradycardia resulting fromoxygen deprivation during labor. The jury returned adefense verdict; a series of appeals ensued.

Under Georgia law, spoliation is “the destructionor failure to preserve evidence that is relevant to contemplated or pending litigation” (emphasis added). Such conduct may give rise to the rebuttable presumptionthat the evidence would have been harmful...

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