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

October 1, 2015 | Health System Risk Management


The Supreme Court of Georgia granted a new trial in a malpractice case in which the trial court declined to instruct the jury, as requested by the plaintiffs, that they may consider whether the hospital had spoliated evidence—a paper fetal monitor strip. The infant plaintiff sustained spastic quadriplegia, blindness, and inability to speak, allegedly due to a delay in recognizing and responding to sustained bradycardia resulting from oxygen deprivation during labor. The jury returned a defense verdict; a series of appeals ensued.

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

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