Real Life "Verdict" Movie-Style Case of Spoliation

Some of you may have seen the classic movie "The Verdict."  Paul Neuman plays barfly lawyer, Frank Galvin, who wins a medical malpractice case at the last moment by a surprise witness, who testifies that the defendant doctor "doctored" the evidence.  The plaintiff in the fictional movie case was the sister of a woman who ended up in a coma after giving birth.  The defendant doctor testified that he gave the proper anesthesia to the patient -- for someone who had eaten nine hours earlier.  The notation of "9" hours appeared on the admitting room form, which the court admitted in evidence. 

Near the end of the trial, however, plaintiff's lawyer Frank Galvin called the admitting room nurse to the stand, who testified that she had marked down a "1" on the form to say that the patient had eaten only one hour earlier; that would mean the anesthesia administered was the wrong kind.  She also testified that the doctor forced her to change the "1" to a "9."  The bombshell was that she actually kept a photocopy of the original form with the "1" written on it in case she needed it someday. 

The judge in the movie excluded the nurse's testimony and the copy (contrary to the normal practice of admitting both copies and letting the jury sort out which is the forgery).  Nonetheless, the jury stuck it to the defendant, probably because it apparently concluded the doctor lied and tried to cover up his mistake.  And the coverup occurred via the manipulation of a paper document, at a time when records were mostly kept on paper. 

In case you haven't seen the movie, it is a good one.  The popular book Reel Justice - The Courtroom Goes to the Movies gives it four gavels.  Written by law professors and film fans Paul Bergman and Michael Asimov, the Reel Justice book reviews movies about lawyers and the legal process.  I recommend the book for law movie fans, along with the movie, but I digress. 

I thought of The Verdict when I read the recent opinion issued by an Ohio appellate court in Cornwell v. Northern Ohio Surgical Center, Ltd., No. E-09-001, 2009 Ohio App. LEXIS 5814 (Ohio Ct. App. 2009).  Click here for a copy of the opinion.  In theCornwell case, a man sued a medical center and a doctor following the death of his wife.  Like The Verdict, an issue arose concerning the defendants' tampering with evidence to cover up malpractice.  But in a sign of the times, the claim was that the defendants doctored a computer file, rather than a paper document. 

The wife, Mary Cornwell, died of cardiac arrest after arthroscopic surgery on her knee.  Mary had a history of pulmonary hypertension, which caused the problems in her surgery leading to her death.  The doctor testified in a deposition that he was unaware of her hypertension and if he had been aware of it, he would have consulted with Mary's primary care physician on how to conduct the surgery safely. 

Contrary to the doctor's assertion, a version of an office note from Mary's file was found, which said that Mary was taking Revatio, a drug used to treat pulmonary hypertension.  The presence of the drug would have been enough to put the doctor on notice that Mary indeed had pulmonary hypertension.  The doctor's version of the office note, however, had no mention of Revatio.  Like The Verdict, the plaintiff claimed that the doctor or his assistant manipulated the office note to remove the incriminating notation.  This time, however, the manipulation alleged occurred via a computer.  The plaintiff said that the office assistant intentionally altered the office note to remove the notation about Mary taking Revatio.  Supporting the plaintiff's theory was the fact that the doctor's office sent out a letter to Mary's referring physician, and the letter mentioned Revatio. 

The office assistant testified that she took dictated notes from a resident mentioning Revatio, created the letter, and then used the letter's content to create the office note.  She said that when she took the letter's content to create the office note she might have left out the notation about Revatio as a cut and paste error.  Significantly, she testified later that she was instructed not to use the computer anymore because of a virus, but denied manipulating the office note. 

Unlike The Verdict, the case had not gone to trial, but instead involved a dispute as to whether the trial court was correct in permitting the plaintiff's expert to image the defendant's hard drive.  The Court of Appeals affirmed the trial court's decision to allow that step, especially because the fishy instruction not to use the computer at the critical moment during discovery "raises an inference of improper conduct." 

Regardless, the bottom line is that the more things change, the more they stay the same.  When a decision-maker smells a whiff of spoliation or manipulation, the responsible party will pay a price.  And although the means are different, computer fraud can be caught, just like paper-based fraud can.

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