NOTICE FROM THE COURT: The slip opinions and orders posted here are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Bulletin Board once it is printed in the Official Reports advance sheets. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, Room 1407, Boston, MA 02108; (617) 557-1030.
KEENE
v.
BRIGHAM AND WOMEN'S HOSPITAL, INC.
439 Mass. 223
SJC-08894
DYLAN KEENE[1] vs. BRIGHAM AND WOMEN'S HOSPITAL,
INC.
Norfolk. January 9, 2003. - April 22, 2003.
Present: Greaney, Ireland, Spina, Cowin, Sosman,
& Cordy, JJ.
Medical Malpractice, Damages, Hospital. Negligence, Hospital,
Spoliation of evidence. Charity. Hospital. Practice, Civil, Discovery, Default,
Loss of evidence. Evidence, Hospital record. Constitutional Law, Alteration of
common law rights.
Civil action commenced in the Superior Court Department
on May 12, 1995.
A pretrial motion for sanctions was heard by Thomas E.
Connelly, J., and a hearing on assessment of damages was had before Judith
Fabricant, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Kenneth W.
Salinger (Steven L. Schreckinger with him) for defendant.
Chris A. Milne
(Marc G. Perlin with him) for the plaintiff.
The following submitted
briefs for amicus curiae:
Colin J. Zick & Anne Sterman for
Massachusetts Hospital Association.
Carl Valvo for Professional Liability
Foundation, Ltd., & another.
Ben Robbins for Associated Industries of
Massachusetts.
Valerie A. Yarashus, J. Michael Conley & Kristen A.
Barnes for Massachusetts Academy of Trial Attorneys.
GREANEY, J. This is a malpractice case in which a baby
suffered catastrophic harm within hours of his birth at the defendant hospital.
We are asked to decide whether (1) a default judgment on liability was properly
entered as a sanction for the defendant's failure to produce in discovery
relevant hospital records that it admittedly had lost; (2) damages assessed
against the defendant are limited by the $20,000 cap imposed by G. L.
c. 231, § 85K, on damages recoverable from a charitable corporation
for a tort committed in the course of the performance of its charitable purpose;
and (3) general damages may be awarded for loss of enjoyment of life when an
injured plaintiff lacks cognitive awareness of that loss. A judge in the
Superior Court imposed the sanction of default as to liability on the defendant
and, as an additional sanction, struck the statutory $20,000 cap on damages
(which the parties agree would have applied). A different judge presided at the
hearing on the assessment of damages. She awarded the plaintiff specific and
general damages totaling $4,108,311 (plus interest), but she did not award, as
an item of general damages, compensation for loss of enjoyment of life. Both
parties appealed, and the Appeals Court affirmed the judgment in all respects.
See Keene v. Brigham & Women's Hosp., Inc., 56 Mass. App. Ct. 10 (2002). We
granted the defendant's application for further appellate review and now
conclude that judgment properly was entered against the defendant on liability,
but that the damages assessed are limited by the cap set forth in G. L.
c. 231, § 85K. In view of the latter conclusion, we need not consider
the plaintiff's claim of entitlement to damages for loss of enjoyment of life.
Accordingly, we affirm so much of the judgment as imposes liability, vacate the
portion of the judgment that assesses damages, and direct that damages be
assessed against the defendant in the amount of $20,000 (plus interest and
costs).
The known facts relevant to the alleged malpractice are as
follows. The plaintiff was born at 1:07 A.M. on May 15, 1986, at the defendant
hospital. Within the first five hours of life, he experienced some degree of
respiratory distress and was sent from the regular care nursery to the special
care nursery (also known as the neonatal intensive care unit or NICU) because he
was "cyanotic."[2] At 6:25 A.M., blood tests, including a complete
blood count and a blood culture, were performed and, immediately thereafter, the
plaintiff was sent back to the regular care nursery with a discharge note
stating: "[r]outine care in regular nursery"; "watch for [signs and symptoms] of
sepsis"; and "[h]old antibiotics pending CBC results and cultures in 24 [hours],
48 [hours], [and] 72 [hours]." It is not known who received the results of the
initial complete blood count (which indicated the presence of Beta-Hemolytic
Streptococci Group B) or what actions were, or were not taken, with respect to
the plaintiff's condition, because all of the defendant hospital records[3] with respect to his treatment and care between the
hours of 6:30 A.M. on May 15, 1986, and 12 A.M. on May 16, 1986, (missing
records period) have vanished.[4] The plaintiff's medical records immediately
following the missing records period indicate that, by 2:30 A.M., he was
suffering septic shock and began having seizures. It was not until this time
that antibiotics were ordered and administered. Later testing revealed that the
plaintiff had contracted neonatal sepsis and meningitis, resulting in the tragic
injuries and situation set forth below.[5]
The plaintiff was discharged from the
defendant on June 17, 1986. Existing hospital records for the plaintiff's
seven-week hospital stay exceed 470 pages. The only records that cannot be
located are those pertinent to the missing record period. Neither party has
presented any evidence with respect to who is responsible for this loss or
whether the records were intentionally destroyed or negligently or accidentally
misplaced.[6]
The timing of the loss, however, is somewhat
more certain. On May 1, 1987, following a request by the plaintiff's family for
the plaintiff's medical records, the defendant filed a notice of a potential
claim with its insurer, Risk Management Foundation (RMF).[7] In response, RMF promptly initiated an
investigation into the circumstances of the plaintiff's injury while in the care
of the defendant. The plaintiff's medical records, which were requested and
received by RMF in the course of its investigation, appear to have been complete
at that time.[8] RMF's investigative report, dated August 12, 1987,
identified three physicians responsible for the plaintiff's care and stated that
"it is questionable whether or not antibiotics should have been initiated sooner
in view of a shift to the left by the complete blood count which would indicate
an infection was going on." The report indicated that the plaintiff's mother had
received a complete copy of the medical records. It is undisputed, however, that
the records received by the plaintiff's family in response to the request that
triggered RMF's investigation, did not include the missing records.[9]
On May 12, 1995, the plaintiff, through his
parents, commenced this action for medical malpractice, claiming that the
defendant had failed properly to diagnose or treat him for the sepsis and
meningitis, resulting in serious injury.[10] The defendant asserted, as an affirmative defense,
the statutory limitation of damages on a charitable corporation under G. L.
c. 231, § 85K.[11] The defendant subsequently provided the plaintiff
a set of hospital medical records certified as "a true and complete copy of this
hospital's medical record concerning [the plaintiff]."
The parties are
not in complete agreement with respect to the events leading to the challenged
sanctions. What follows is a summary of the relevant findings of the judge who
imposed the sanctions, supplemented, in part, with facts documented in the
record, and inferences drawn therefrom. On October 18, 1995, the plaintiff
served the defendant with notice pursuant to Mass. R. Civ. P. 30 (b) (6), 365
Mass. 780 (1974), of a deposition. The notice sought the identities of doctors,
nurses, and other hospital personnel responsible for the care and treatment of
the plaintiff for the time period reflected by the missing records. The
defendant objected to this request on the ground that it was overly burdensome,
and the deposition did not go forward. On December 15, 1995, the plaintiff again
gave notice of the defendant's deposition, this time seeking a complete copy of
the plaintiff's medical records and the identity of the doctors and nurses
responsible for his care during the missing record period. The defendant moved
for a protective order, on the ground that the discovery sought by the plaintiff
was "unduly burdensome insofar as [the defendant] already ha[d] provided all of
the information that it [was] reasonably able to provide."[12] On February 27, 1996, the defendant's motion for a
protective order was denied in its entirety by a judge in the Superior
Court.
At a subsequent deposition, the defendant (through testimony of
two medical records department employees) conceded that the plaintiff's medical
records with respect to the eighteen-hour period at issue were missing, and
admitted that no attempt had been made to identify those doctors and nurses who
had treated the plaintiff during the period reflected by the missing records.
The deposition was continued (ostensibly to afford the defendant time to make
further efforts to locate the missing records). Testimony taken on the
continuance date, however, revealed that the records were still missing, and no
effort had been made by the defendant to identify further the doctors or nurses
who had treated the plaintiff.
On April 12, 1996, plaintiff filed a
motion requesting that, as a sanction pursuant to rule 37 (b) (2), the defendant
be precluded from introducing in evidence any testimony regarding the treatment
provided to the plaintiff during the hours covered by the missing records. The
judge (the same judge who had denied the defendant's motion for a protective
order) entered a preliminary order for the appearance, in addition to trial
counsel, of the chief medical record librarian of the defendant hospital,
together with any other medical record librarians who had been involved in the
defendant's search for the missing records, at a hearing on the plaintiff's
motion on May 3, 1996.[13] On April 30, 1996, the plaintiff filed a
supplemental motion for sanctions, seeking entry of default judgment on
liability against the defendant and the striking of its affirmative defense
asserting the cap set forth in G. L. c. 231, § 85K. The plaintiff
also filed an amended complaint, alleging that the defendant's negligent failure
to administer antibiotics during the time period covered by the missing records
caused the plaintiff to suffer brain damage.[14] The defendant once again asserted, as an
affirmative defense, the $20,000 statutory cap on damages.
At the May 3
hearing, the defendant suggested that lost hospital records often were
discovered misfiled in records of another patient, and described its efforts to
locate the missing records.[15] The defendant indicated, however, that it had not
contacted physicians named in the existing records, or the defendant's insurer,
RMF, to determine whether other documentation regarding the period covered by
the missing files existed.
The judge stated that "the number one
[priority was to] use all our efforts to get the entire hospital record" and
ordered the defendant to "resurrect the missing pages or, in the alternative,
[to determine] what might substitute for those missing pages." The judge
instructed the defendant to make contact with (1) any physicians identified in
the existing records, to determine whether the physicians possessed any records
or information with respect to the period reflected by the missing records; (2)
RMF, to determine whether it possessed a file of any statements taken by any
persons at the time of its investigation in 1987[16]; and (3) the pediatrician on call in the NICU on
May 15, 1986,[17] to determine whether he had any records or
knowledge about the missing record period.[18]
On September 17, 1996, a different judge in
the Superior Court ordered the defendant, pursuant to rule 37, further to answer
the plaintiff's interrogatories with respect to the plaintiff's care during the
missing record period. On April 14, 1997, the defendant complied with the
judge's order. In its answers, the defendant objected to the interrogatories,
primarily because the information being sought was "not within [its] actual
knowledge, possession, custody or control."[19] The defendant's response identified two physicians
who had examined the plaintiff shortly after birth, one of whom was involved in
the decision to administer the initial complete blood count and blood culture
tests, and one nurse who had drawn the blood for the tests. In response to
questions with respect to the identity of the person or persons who received the
results of the initial complete blood count and what actions were, or were not
taken, in response to the abnormal result, the defendant claimed that it had no
information sufficient to respond, because "it ha[d] been unable to locate
medical records indicating the time at which the results were received or the
identity of the person receiving them."
An evidentiary hearing on the
plaintiff's motion for sanctions was next conducted.[20] The plaintiff's position was that, without the
missing records, the plaintiff had no ability to prove the alleged malpractice
nor to determine the identity of the physicians and nurses responsible for the
plaintiff's care. The defendant, in turn, contended that it had made every
effort to comply with the plaintiff's requests for production of the records and
that it had produced the entire record that was available to it.[21] The defendant argued that the plaintiff's claims
raised issues of causation that were required to be determined by a fact finder;
that circumstances of the case did not justify even the inference of spoliation,
much less the "extraordinary" sanction of a default judgment; and that the judge
lacked authority to strike the statutory cap on damages.
Subsequently,
the judge entered an order allowing the plaintiff's motion. The defendant was
defaulted and its defense under G. L. c. 231, § 85K, was struck.
In a written memorandum of decision, the judge stated that, although "[n]o
evidence has been presented showing wilfulness or bad faith on the part of [the
defendant]," the loss of the plaintiff's records nevertheless amounted to
"negligence" in view of the statutory duty to keep records imposed on the
defendant hospital by G. L. c. 111, § 70. Further, the
defendant's failure to maintain the records deprived the plaintiff of "the
opportunity to recover from those individuals directly at fault." The judge
reasoned that, without the imposed sanctions, the plaintiff "would not be able
to prove negligence on the part of the [defendant], and even if [he] could, the
damages [he] [has] suffered would greatly exceed the fixed sum [he] would
receive. In short, anything less than what [the plaintiff] seek[s], by way of
sanctions, would effectively deny the plaintiff[] [his] day in court. . . .
Allowing [the defendant] the benefit of the statutory cap provided in
[G. L.] c. 231, § 85K, when as a result of [its] negligence the
plaintiff[] [is] left without an adequate remedy is contrary to the principles
of fairness, equity and justice." The judge noted that, striking the charitable
cap as a sanction was fair, because "the hospital and its doctors are insured by
the same entity."[22]
1. We first consider the appropriateness of
the default sanction. The parties and the judge considered the situation as one
arising under rule 37 (b) (2) (C), which authorizes a judge, when confronted
with a party who fails to obey an order to provide or permit discovery, to "make
such orders in regard to the failure as are just, and among others . . . [a]n
order striking out pleadings or parts thereof . . . or rendering a judgment by
default against the disobedient party." In view of the judge's determination
that the defendant was unable (as opposed to unwilling) to produce the
documents, this was not correct. Requests for discovery pursuant to Mass. R.
Civ. P. 34 (a), 365 Mass. 792 (1974), require production of documents that "are
in the possession, custody or control of the party upon whom the request is
served." By these express terms, rule 34 (a) does not demand production of
documents that "were in" or that "should have been kept in" the party's
possession. Put simply, there can be no discovery violation, and hence no rule
37 sanction, when a party fails to produce documents it does not possess. The
parties and the judge cannot be faulted, however, for treating the problem of
the missing records as one invoking sanctions for a discovery violation. As
indicated above, it was not until the discovery process was well underway that
the defendant admitted it no longer was in possession of the plaintiff's
complete set of medical records.
In retrospect, the matter should have
been disposed of under the doctrine of spoliation, which permits the imposition
of sanctions and remedies for the destruction of evidence in civil litigation.
The doctrine is based on the premise that a party who has negligently or
intentionally lost or destroyed evidence known to be relevant for an upcoming
legal proceeding should be held accountable for any unfair prejudice that
results. See Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 549-550
(2002); Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 127 (1998).[23] See also Nally v. Volkswagen of Am., Inc., 405
Mass. 191, 197-198 (1989).
That the missing records vanished years before
the commencement of the lawsuit does not make the doctrine of spoliation
inapplicable. As we stated in the Kippenhan decision, "[s]anctions may be
appropriate for the spoliation of evidence that occurs even before an action has
been commenced, if a litigant or its expert knows or reasonably should know that
the evidence might be relevant to a possible action." Id. The judge made no
determination with respect to when the defendant knew, or should have known,
that litigation was a possibility. The defendant's claim that the missing
records were lost long before it was aware (or should have been aware) of the
possibility of a suit on behalf of the plaintiff, however, is not supported by
the record, which establishes that the defendant should have been aware of a
likely claim at least as early as May 1, 1987, the time that it filed a notice
with RMF of a potential claim based on the plaintiff's injuries. Under the
doctrine of spoliation, the defendant's duty to preserve evidence arose at that
time, and any subsequent loss (see & note 8, infra) of the missing records
would render the defendant accountable for the plaintiff's inability to prove
his malpractice claim. See Fletcher v. Dorchester Mut. Ins. Co., supra at 550;
Kippenhan v. Chaulk Servs., Inc., supra.
The defendant's awareness of
potential litigation is not the only basis on which we treat this matter as
spoliation. As recognized by the judge, the defendant also had a statutory
obligation imposed by G. L. c. 111, § 70, which provides, in relevant part:
"Hospitals or clinics subject to licensure by the department of public health or
supported in whole or in part by the commonwealth, shall keep records of the
treatment of the cases under their care including the medical history and
nurses' notes . . . . Such records shall be in the custody of the hospital or
clinic." A related statute, G. L. c. 111, § 70E, provides patients with
rights with respect to their medical records kept by a hospital pursuant to
§ 70, including the right to inspect and receive a copy of their medical
records, on request. While the statutory requirement to maintain medical records
is grounded, in part, on the need for such records as part of a patient's
ongoing medical care, it reflects as well the Legislature's recognition that
such records often will be germane to a wide variety of legal claims and
proceedings including, but not limited to, medical malpractice claims. The
defendant's unexplained loss of the plaintiff's medical records during the
period when it was statutorily required to maintain them renders the defendant
accountable for the resulting prejudice to the plaintiff. In the spoliation
context (like in the discovery context), a judge has broad discretion to impose
a variety of sanctions against the defendant for the breach of its statutory
duty to retain the plaintiff's missing records.[24]
As a general rule, a judge should impose
the least severe sanction necessary to remedy the prejudice to the nonspoliating
party. See Fletcher v. Dorchester Mut. Ins. Co., supra (sanction for spoliation
should be "addressed to the precise unfairness that would otherwise result").
See also Anderson v. Beatrice Foods Co., 900 F.2d 388, 395 (1st Cir.), cert.
denied, 498 U.S. 891 (1990) (judges should "take pains neither to use an
elephant gun to slay a mouse nor to wield a cardboard sword if a dragon looms").
Although the decision to enter a default judgment is committed to the sound
discretion of the judge, see Riley v. Davison Constr. Co., 381 Mass. 432, 441
(1980), we generally require that the extreme sanction of dismissal or default
judgment be predicated on a finding of wilfulness or bad faith, see Gos v.
Brownstein, 403 Mass. 252, 257 (1988), and conclude that such sanctions would
not ordinarily be appropriate in a case of negligent spoliation. This is so
because "[t]he law strongly favors a trial on the merits of a claim." Monahan v.
Washburn, 400 Mass. 126, 129 (1987) (considering involuntary dismissal under
Mass. R. Civ. P. 41 [b] [2], 365 Mass. 803 [1974]).
This is not a case,
however, where it has been established that the defendant's failure to comply
was due to no fault of its own. See Societe Internationale Pour Participations
Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 210-211 (1958)
(construing Fed. R. Civ. P. 37 [b]). As discussed above, the judge properly
discerned that the defendant's failure to preserve hospital records as required
by law constituted at least negligence. Moreover, unlike an ordinary case of
spoliation, the defendant's violation of the statutory mandate that it both keep
records and provide them to patients upon request is a violation that itself
gives rise to liability as a form of medical malpractice. See G. L.
c. 111, § 70E (giving patients the right to inspect and copy their
medical records maintained under § 70, and allowing actions under
G. L. c. 231, §§ 60B-60E, if those rights are violated). Finally,
the missing records were not simply of potential use to the plaintiff, but
formed the critical linchpin of the plaintiff's case.
On this last point,
the defendant claims that, because the plaintiff would have been able to
establish some proof of his claim without the missing records, the severe
sanction of entry of default judgment was both unwarranted and unconstitutional.
The judge made every effort to have this case tried on the merits but foresaw no
possibility that the missing records could be resurrected. At a hearing on the
plaintiff's motion for sanctions held on July 29, 1997, the judge was informed
by counsel for the defendant, "[W]e are basically at the end of the line on that
issue. All of the cards are on the table and we come before the Court to say we
are in an impossible position without those records." In his written memorandum,
the judge found that, "[f]rom the evidence presented to this court, the records
appear to be irreparably lost." Due to the defendant's loss of the plaintiff's
medical records for the critical hours during which the alleged malpractice
occurred, the plaintiff was left with virtually no evidence that could be
presented to a jury concerning his clinical features between the hours of 6:30
A.M. on May 15, 1986, and 12 A.M. on May 16, 1986, or what care had been
provided him during that time.
With respect to the other essential
elements of the plaintiff's claim, the applicable standard of care and
causation, the judge was in the best position to assess the credibility of the
affidavits of the plaintiff's medical experts and the opinions contained
therein. See note 20, supra. Although the judge characterized the entry of
default judgment as a sanction, imposed to remedy the fatal prejudice to the
plaintiff's action, it also could be viewed as reflecting an adverse inference
made by the judge, in the absence of any evidence to the contrary, that the
missing records would likely contain further proof that antibiotics should have
been administered sooner and that the defendant's failure to do so caused the
plaintiff's injuries. The judge was aware that the entry of a default judgment
against the defendant would deprive it of its day in court, but concluded that,
in the special circumstances of this case, "anything less than a default
judgment would have the same result on the plaintiff[]."
This case is an
exceptional one. The missing records, which the defendant concedes are
irreparably lost, contain the only documentation of the critical time period
during which the alleged malpractice occurred. Because of the defendant's
failure to maintain the missing records, as it was required by law to do, the
plaintiff's family will never know for certain what actions were, or were not,
taken when the severity of the plaintiff's medical condition became apparent, or
the identities of those responsible for his care at that time. On this unique
and extraordinary record, we conclude that the judge was within his authority in
ordering the sanction of default on the issue of liability.
2. We turn
now to the statutory cap on damages imposed by G. L. c. 231,
§ 85K, concluding that the judge lacked authority to strike the cap as an
additional sanction.
General Laws c. 231, § 85K, inserted by St.
1971, c. 785, § 1, provides:
"It shall not constitute a defense to any cause of action based
on tort brought against a corporation . . . that . . . is or at the time the
cause of action arose was a charity; provided, that if the tort was committed in
the course of any activity carried on to accomplish directly the charitable
purposes of such corporation . . . liability in any such cause of action shall
not exceed the sum of twenty thousand dollars exclusive of interest and costs.
Notwithstanding any other provision of this section, liability of charitable
corporations . . . shall not be subject to the limitations set forth in this
section if the tort was committed in the course of activities primarily
commercial in character even though carried on to obtain revenue to be used for
charitable purposes."
The plain text of the statute makes the cap mandatory and
contains no language that would warrant its abrogation as a sanction for a
violation of the sort that occurred here. Nor does the statutory language,
"liability . . . shall not exceed the sum of twenty thousand dollars exclusive
of interest and costs," allow an interpretation that negligent conduct on the
part of a charitable corporation constitutes a waiver of the mandatory statutory
limitation on recovery. The Legislature's purpose behind the charitable cap was
"to protect the funds [and other assets] of charitable institutions so they may
be devoted to charitable purposes." English v. New England Med. Ctr., 405 Mass.
423, 429 (1989), cert. denied, 493 U.S. 1056 (1990). We are bound to give
§ 85K the scope intended by the Legislature. See Morrison v. Lennett, 415
Mass. 857, 862 (1993).[25]
Although technically a limitation on
liability, the charitable cap set forth in § 85K has been treated as an
affirmative defense that must be pleaded under Mass. R. Civ. P. 8 (c), 365 Mass.
749 (1974) (listing specific affirmative defenses, and concluding with the
residuary clause "any other matter constituting an avoidance or affirmative
defense"). See Harlow v. Chin, 405 Mass. 697, 715 (1989). Factual matters
related to the cap may need to be determined by the fact finder, with the burden
on the defendant to prove both that it is a charitable organization and that the
tort complained of fell within the range of activities covered by the cap. See
id.; Grueninger v. President & Fellows of Harvard College, 343 Mass. 338,
340 (1961). The requirement that it be raised as an affirmative defense in such
circumstances prevents unfair surprise, a key focus of the requirement of
pleading affirmative defenses, and resulting prejudice to the
plaintiff.
The characterization of the cap as an affirmative defense,
however, does not change its basic nature as a legislatively mandated limit on
the amount of civil damages that can be recovered from a charitable corporation
that causes harm by committing a tort in the performance of its charitable
purpose, no matter how compelling the circumstances of the injured party. The
legislative directive relied on by the plaintiff, providing that, "[n]othing in
[G. L. c. 231, § 85K,] shall be construed to enlarge any
protection from tort liability afforded by the common law of the commonwealth
prior to the effective date of this act," St. 1971, c. 785, § 2, does not
persuade us otherwise. In our view, the directive refers to the requirement that
a charitable corporation must be engaged in its charitable purpose to enjoy the
benefit of the cap, just as, at common law, the protection of charitable
immunity only extended to negligence committed in the course of activities
carried on to accomplish charitable activities. The directive provides no basis
for striking the charitable cap as a sanction for the loss of relevant evidence
in a tort action where, as here, both parties agree that the alleged malpractice
occurred when the defendant was performing its charitable activities.[26]
Here, the statutory cap was raised by the
defendant in a timely manner, and there is no claim of surprise. It was
undisputed that the defendant is a charitable corporation and that it was acting
in the performance of its charitable purposes when the harm occurred. The judge
ordered that the charitable cap be struck, not to cure prejudice because the
defendant had failed timely to plead the limitation, nor because the defendant
failed to comply with an order to provide discovery seeking information
concerning its charitable status or whether the plaintiff's injuries occurred
during commercial, rather than charitable, activities. Rather, the judge
reasoned that § 85K would not apply to physicians and nurses on the
defendant's staff, for whose negligence the defendant (presumably) would be
vicariously liable in any event, see Mullins v. Pine Manor College, 389 Mass.
47, 63 (1983), and ordered the cap struck in an attempt to remedy what he
(correctly) perceived to be a horrific wrong done to the plaintiff for which the
defendant was responsible. This is not a proper result. The charitable cap may
be waived, of course, if a party agrees, but, for reasons stated above, cannot
be struck as a sanction when, as here, both parties agree that the cap is
applicable, on the grounds that the cap is "unfair" or otherwise to achieve an
equitable result. That the hospital and its employees who may have been
responsible for the plaintiff's injuries (who are not protected by the
charitable cap but were not named defendants in this action, primarily due to
the plaintiff's inability to discover their identity) are insured by the same
insurance company was not a proper basis on which to strike the cap. See Johnson
v. Wesson Women's Hosp., 367 Mass. 717, 718-719 (1975); McKay v. Morgan Memorial
Coop. Indus. & Stores, Inc., 272 Mass. 121, 126 (1930). See also Ayala v.
Boston Hous. Auth., 404 Mass. 689, 704-705 (1989).
Two final points are
in order with respect to the dissenting opinion's position that the judge
properly struck the charitable cap as a sanction under rule 37 for the
defendant's failure to produce the missing records. The first concerns the
dissent's reliance on G. L. c. 111, § 70, as the source of the
defendant's duty to preserve the plaintiff's medical records. Post at . That
statutory scheme, as has been mentioned, provides that the violation of a
patient's rights, including the right "upon request, to inspect his medical
records and to receive a copy thereof in accordance with [G. L. c. 111,
§ 70]," is in and of itself a form of actionable malpractice. G. L.
c. 111, § 70E. Damages in any such malpractice action, however, if
brought against a health care provider entitled to the charitable cap, would be
capped at $20,000. It would be anomalous indeed to impose a remedy under the
rules of civil procedure for the violation of a statutorily imposed duty that
goes beyond the remedy provided under the statute creating the duty in the first
place.
The second takes issue with the assertion that allowing the
statutory cap in this case "condone[s] the poor record-keeping practices of the
hospital." Post at . It is difficult to understand in what manner the entry of a
default judgment against the defendant "sends the message to charitable
hospitals that 'losing' medical records will shield their employee physicians
from liability." Post at . Both parties agree that, even were the missing
records available and the information contained therein proved the plaintiff's
malpractice claim against the defendant, a verdict for the plaintiff would, as
matter of law, be limited by the statutory cap. The dissent's suggestion, post
at , , that the court's decision essentially "reward[s]" the defendant for the
intentional destruction of documents by its employees is simply not supported in
fact or law.
Our conclusion that the spoliation remedies available to the
judge does not include striking the cap unquestionably causes an unusually harsh
result for the plaintiff and his family. We are, however, bound by the
Legislature's determination of the matter. See Morrison v. Lennett, 415 Mass.
857, 862 (1993) (§ 85K must be given scope intended by Legislature). In the
absence of an expression of legislative intent that there be exception from the
charitable cap in circumstances such as these, we cannot create one. See
Prudential Ins. Co. v. Boston, 369 Mass. 542, 547 (1976); Enos v. Correia, 38
Mass. App. Ct. 318, 322-323 (1995).[27]
3. So much of the judgment imposing
liability on the defendant is affirmed. The assessment of damages in the
judgment is vacated. Damages are to be assessed in the amount of $20,000 plus
interest and costs.
So ordered.
IRELAND, J. (dissenting). I dissent from the court's opinion. I
do so because I believe that this is not a spoliation case at all, but rather
involves Mass. R. Civ. P. 37 (b) (2) (C), as amended, 390 Mass. 1208 (1984), as
the parties, the trial judge, and the Appeals Court believed.[28] As such, it was well within the motion judge's
discretion to strike the defendant's affirmative defense, in this situation, its
charitable immunity status. I have previously expressed my concern over the
harsh results mandated by legislative statutes that confer immunity,[29] but agreed that in those cases we were bound to
the outcome. The notion of a charitable immunity cap is unfair, obsolete, and
fails to properly balance the interest of the innocent victim and that of the
negligent charitable organization. Here, the court rewards the defendant for
negligent record-keeping practices, which has left the plaintiff unable to
present a triable issue of fact. This is a situation where the court should be
able to exercise its discretion, and common sense, in striking the charitable
immunity cap.
First as to spoliation, I believe that this is not the
proper doctrine by which the plaintiff can receive a default judgment. The court
correctly asserts that the concept of spoliation binds a party to preserve
evidence that may be relevant to a potential suit even before an action has
commenced, so long as "a litigant or its expert knows or reasonably should know
that the evidence might be relevant to a possible action." Kippenhan v. Chaulk
Servs., Inc., 428 Mass. 124, 127 (1998). The court states that the defendant was
on notice and its "duty to preserve evidence arose" at the time its insurance
company (RMF) produced an investigatory report, approximately one year after the
plaintiff was born. Ante at . According to the Kippenhan decision, documents
destroyed subsequent to this point would fall under spoliation. Id. The problem
is, contrary to the court's unsupported assertion, it is just as likely the
missing documents were lost or destroyed prior to RMF issuing its investigative
report.
The court cites language from RMF's investigative report to
support the theory that the timing of the loss of records is "more certain,"
because the records submitted to RMF, "appear to have been complete at [the time
of RMF's report]." Ante at . This is an improper inference and cannot be drawn
from the documents before us. There is nothing in RMF's report that could not be
gleaned by examining the still-present information contained in the plaintiff's
medical records.
The complete blood count (CBC) test referred to in the
language, "it is questionable whether or not antibiotics should have been
initiated sooner in view of a shift to the left by the complete blood count
which would indicate an infection was going on," is contained in the current
record. Had the records provided to the insurance company contained the name of
the doctor who opted not to medicate as a result of the 7:34 A.M. CBC,[30] one would think RMF would have noted the name,
considering this was the ultimate question concerning potential liability. In
fact the only two mentions of time in RMF's report bookend the missing record
period, and are found on notes still contained in the current record.
The
first mention of time by the RMF report is of 6 A.M. May 15, 1986, in a record
stating when the plaintiff was brought to the special care nursery. He was then
sent back to the regular nursery by a physician noted by RMF as "Dr.
O'Drisewell." This documentation still exists, in fact, it is the last record of
care regarding the plaintiff immediately prior to the missing record period (and
is actually signed by one "Dr. O'Driscoll," not Dr. O'Drisewill as noted by
RMF). This document notes to hold antibiotics pending CBC results, the exact and
only issue identified by RMF's report as a potential malpractice liability. The
next time reference contained in the insurance report (which is the next
sentence in the report) is 7 A.M., May 16, 1986, when the plaintiff was returned
to the special care nursery. This notation marks the resumption of the
record-keeping after the missing record window. It appears more than likely that
the missing records were never viewed by RMF at all, and that the records were
destroyed or lost long before the initial RMF report. Thus the conclusion
reached by the court that the now missing records were present at the time of
RMF's report and were subsequently lost or destroyed, is error.
It is for
this reason that neither the trial court, the Appeals Court, the plaintiff, nor
the defendant, considered this a spoliation case. Because it is impossible to
determine exactly when the records disappeared, and it is just as likely they
disappeared before the defendant was on notice of a potential law suit, the
situation does not fall under spoliation criteria. Our case law is clear that in
order for spoliation to apply, the documents must be destroyed by the potential
party at a time when it knows, or should know, of the possibility of a law suit.
See Kippenhan v. Chaulk Servs., Inc., supra. It is impractical to hold hospitals
liable for spoliation in every instance of missing medical documents, unless
there is some sort of notice aside from an adverse outcome after medical
treatment. On the evidence before us, it is improper for this court to determine
the point in time that the documents were lost, when the judge himself was
unable to make such a finding. In invoking the spoliation doctrine, the court
needlessly delves into the propriety of default judgment for a spoliation
violation.[31]
Because it is more likely the documents
were lost prior to any notice of suit, this case was properly characterized as a
rule 37 (b) (2) (C) discovery sanction. The defendant unquestionably had a
statutorily imposed responsibility to keep and preserve the plaintiff's medical
records. See G. L. c. 111, § 70. It was therefore not an abuse of
discretion for the judge to sanction the defendant for the inability to produce
documents that it had an obligation to maintain. See Societe Internationale Pour
Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197,
206-209, 212 (1958) (sanction of dismissal for inability to comply with pretrial
production order not warranted when inability to comply not due to litigant's
own conduct or circumstances within its control). Nor was it abuse of discretion
under rule 37 for the trial judge to issue a default judgment where he found
that with everything before the court, the plaintiff was left without a remedy
due to the negligent mishandling of the plaintiff's records by the
defendant.
Second, because noncompliance with a discovery order is
grounds for an appropriate sanction under rule 37 (b) (2) (C), it was not abuse
of discretion to strike the charitable immunity cap. See Gos v. Brownstein, 403
Mass. 252, 255-256 (1988) (sanctions need not be based on a wilful failure to
comply with discovery order). Although the charitable immunity cap under G. L.
c. 231, § 85K, is mandated by the Legislature, the very words of the
statute when examined in light of the legislative intent, allow the judiciary
the ability to strike the cap in limited circumstances.
The charitable
immunity cap must be affirmatively pleaded by a defendant, and thus should be
subject to both waiver and sanction. See Mass. R. Civ. P. 37 (b) (2) (C). Both
the common- law history and the legislative history of the charitable immunity
cap warrant this conclusion. Prior to the enactment of § 85K, charitable
immunity was recognized as an affirmative defense in tort liability. See
Grueninger v. President & Fellows of Harvard College, 343 Mass. 338, 339
(1961). In response to this court's announcement of its intention to abolish the
affirmative defense, Colby v. Carney Hosp., 356 Mass. 527, 528 (1969), the
Legislature enacted § 85K.[32] The statute capped charitable immunity liability
at $20,000, and stated that it "shall not be construed to enlarge any protection
from tort liability afforded by the common law of the commonwealth." St. 1971,
c. 231, § 2. With this guidance, it is not an abuse of authority for a
court to strike the affirmative defense of charitable immunity in the
appropriate circumstances.
Even the court implies that under rule 37, a
judge could essentially strike a charitable immunity pleading in certain
circumstances, for example, when a charitable institution fails to plead its
status in a timely manner. See ante at . To penalize the charitable institution
for that discovery violation, but not for the negligent handling of patient
records, is hard to understand. There is no evidence of legislative intent in
support of striking the charitable immunity cap for one discovery violation over
another.
Although this particular case presented us with an avenue to
strike the charitable immunity cap, I urge the Legislature to act in order that
Massachusetts align with the vast majority of States in recognizing that the
charitable immunity cap has become obsolete, unfair, and expanded beyond its
original intent. In rejecting charitable immunity, the Restatement (Second) of
Torts states, "One engaged in a charitable, educational, religious or benevolent
enterprise or activity is not for that reason immune from tort liability."
Restatement (Second) of Torts § 895E (1979). The great majority of
jurisdictions support this section, as the need for abrogation of liability in a
field such as healthcare no longer makes sense. See id. at Reporter's Note, and
cases cited. "[I]t is not too much to expect that those who serve and minister
to members of the public should do so, as do all others, subject to that
principle and within the obligation not to injure through carelessness." 15 Am.
Jur. 2d § 184, at 172-173 (2000).
When people avail themselves to
the services of a hospital, they are often at their most vulnerable. By allowing
a hospital to shield itself from liability for its negligent practices, the
charitable immunity cap is doing a disservice to the public by allowing
substandard treatment practices to be rewarded by virtue of a corporate status.
The availability of the judicial system to victims of malpractice is an
essential avenue that propagates higher standards of medical treatment. By
limiting the liability of the charitable hospital, the Legislature is
effectively allowing a hospital to hide negligent practices. This decision sends
the message to charitable hospitals that "losing" medical records will shield
their employee physicians from liability.[33]
What the court has successfully done is to
condone the poor record-keeping practices of the hospital, or even reward the
destruction of documents by employees who otherwise would potentially face a law
suit. While it is possible the documents were lost, it is also just as likely
that they were intentionally destroyed. If the hospital is not liable in the
physician's stead, what incentive is there for the hospital to conduct internal
investigations to arrive at the identity of the caregiver? This is not a
hypothetical question, this is what we are faced with in this case.
While
the Legislature may intend to shield charities from tort suits, it does not
intend to allow employees to hide behind the same shield. By virtue of the
missing records, all of the physicians potentially responsible for the
plaintiff's brain damage have been allowed to escape liability. When the
defendant negligently failed to maintain the documents, it essentially acted as
a shield to the physicians involved in the plaintiff's treatment. Like in Brum
v. Dartmouth, 428 Mass. 684 (1999), which involved a school's escaping legal
accountability, I believe that when one avails himself of a hospital, he should
be able to expect a certain degree of care. See id. at 709-710 (Ireland, J.,
concurring) (school officials should not be deliberately indifferent to imminent
threat of safety to one of its students). Hospitals have a responsibility to
supervise the practice of medicine that occurs within their doors, and to
provide as safe an environment as possible for the critically ill patients that
avail themselves of medical treatment.
The result reached by the majority
is not only harsh, but contrary to common sense and legislative intent to
balance the interests of the charitable immunity with that of the citizens of
the Commonwealth. I would therefore affirm the judge's ruling.
FOOTNOTES:
[1] By his parents and next friends, Kathleen Keene and Robert Keene.
[2] The term "cyanotic" describes a newborn who exhibits a dusky coloring or bluish tinge.
[3] As an initial matter, we reject the defendant's contention that only one record, a portion of a single document described as a "Kardex" file, is missing. It is inconceivable that a newborn experiencing increasingly severe medical difficulties, such as the plaintiff during the missing record period, would generate but a single medical record, and the record in this case, including an affidavit submitted by the plaintiff as well as deposition testimony of the defendant's employees, does not support such an inference. Paradoxically, as the parties point out, the only precise method to determine how many records are missing is to examine the missing records.
[4] The exact time of entry of the next medical record is disputed. The judge who imposed the sanction defined the missing record period as from 6:35 A.M. on May 15 until 12:00 A.M. on May 16, 1986. It is of no importance to our decision whether the missing time period is characterized as twenty, eighteen, or 17.5 hours.
[5] The
sepsis and meningitis resulted in profound brain damage to the plaintiff.
Permanent manifestations of that brain damage, as described by the Superior
Court judge who determined the damages award, include mental retardation, with a
level of cognitive function at approximately that of a six month old child;
spastic quadriplegia, with little or no voluntary control of any part of his
body; limited vision, with only some perception of light; painful scoliosis; and
chronic seizure disorder, with regular daily seizures. The plaintiff receives
nutrition by means of a gastrostomy tube and does not receive any food by mouth.
He is incontinent of bowel and bladder and suffers from chronic constipation. He
is unable to participate in his own care in any way, and unable to communicate
through the use of language in any form. The plaintiff manifests his reactions
to sensations and stimuli through facial expressions and vocalizations,
including smiling, grimacing, crying, and laughing.
The plaintiff, now sixteen years old, lives at home with his parents and two siblings. The judge who assessed damages found that the plaintiff's parents "have demonstrated an extremely high level of devotion to [their son], and have developed a high level of skill in meeting his needs, including identifying and obtaining optimal medical, therapeutic, and educational services for him."
[6] The record in this case does not support the plaintiff's suggestion that the missing records were deliberately misplaced or destroyed by a hospital employee in 1987 before a copy was given to the plaintiff's family. Neither, however, does the record support the defendant's blithe assertion that the "missing medical record was evidently misplaced shortly after [the plaintiff's] birth in May 1986, and has not been seen since."
[7] No lawsuit on behalf of the plaintiff, however, was commenced at this time.
[8] The dissenting opinion, post at , takes issue with the court's assessment as to the probable timing of the loss of the missing records. We use the emphasized word "appear" to express a cautionary result based on an appellate record that bespeaks a lack of anything that would warrant definitive certainty. The above inference, however, has support in the record, including: the initial formal investigative report of Risk Management Foundation (RMF) (identifying two physicians interviewed in connection with RMF's investigation whose names do not appear elsewhere in the record); the unchallenged finding of the judge who ordered the disclosure of RMF's investigative file, see note 16, infra, that "the only existing documents that contain information about the procedures taken after [the plaintiff's] birth, and the medical personnel who were involved, are the documents compiled by RMF"; and various statements made by the defendant hospital during the course of discovery suggesting its belief that RMF possessed information relating to the missing record period. In the larger picture, nothing really turns on the disagreement here discussed because, as will be pointed out, the defendant was properly defaulted and the statutory cap acts to limit its damages.
[9] The judge made no findings with respect to when the missing records became "missing."
[10] Also named in the complaint were the plaintiff's health maintenance organization, Harvard Community Health Plan (HCHP), and two physicians who had cared for the plaintiff's mother. The claims against these physicians later were dismissed without prejudice.
[11] The defendant also pleaded charitable immunity as an affirmative defense. As will be discussed in note 25, infra, the Legislature abrogated the common-law doctrine of charitable immunity in 1971 and, in its place, imposed a statutory cap on tort liability of charitable corporations. See G. L. c. 231, § 85K. In the context of pleading, we consider the concepts of charitable immunity and the charitable cap on damages to be interchangeable.
[12] In a memorandum of law filed in support of its motion for a protective order, the defendant asserted that it had "willingly identified" four caretakers whose (illegible) signatures appeared on existing records dated May 15, and that the defendant had "no better ability than [did] the plaintiff to determine whether any individuals not indicated in the medical record may have cared for the plaintiff or his mother."
[13] The preliminary order also advised the medical record librarians of their right to be represented by their own counsel at the evidentiary hearing.
[14] The amended complaint also stated claims for breach of contract and lack of informed consent, and named another physician as a defendant. In November of 1997, the parties stipulated to the dismissal with prejudice of all claims against HCHP (named in the original complaint, see note 10, supra) and the physician.
[15] An affidavit of the associate director of medical records services, submitted in connection with the same hearing, stated that the scope of the search had expanded to encompass the records of every in-patient discharged from the defendant hospital in 1986, totaling approximately 40,000 medical records.
[16] Copies of documents compiled by RMF in the course of its investigation of the circumstances surrounding the plaintiff's birth were produced, pursuant to a court order allowing the plaintiff's motion to compel discovery, entered August 5, 1996.
[17] This physician had been named as a defendant in the plaintiff's amended complaint. See note 14, supra.
[18] The judge's order, which included multiple instructions to the defendant with respect to the production, or recreation, of the missing records, was not entered on the Superior Court docket.
[19] The defendant also objected to the interrogatories as "overly broad and unduly burdensome in view of the length of time that has elapsed since the events referenced" and potentially implicative of the attorney-client privilege and work product doctrines.
[20]
Affidavits supporting the plaintiff's motion included those of two physicians,
Dr. Stephen I. Pelton (who is board certified in pediatrics and in pediatric
infectious diseases) and Dr. Marcus C. Hermansen (who is board certified in
pediatrics and neonatology). The affidavit of Dr. Pelton stated that he had
reviewed the plaintiff's existing medical records of the defendant hospital and
the records of RMF (including interviews with two doctors named in the RMF's
report and an affidavit of the plaintiff's mother (also filed in support of the
plaintiff's motion) describing her memory of events during the missing records
period. In the opinion of Dr. Pelton, the plaintiff's existing medical records
reveal that the plaintiff experienced clinical signs of infection in the first
five hours of his life, and that the failure of responsible physicians to order
and administer antibiotics constituted a breach of applicable standards of care.
Dr. Pelton further opined that the failure of nurses responsible for the
plaintiff's care, both in the regular care nursery and in the NICU, to call the
plaintiff's condition to the attention of a responsible physician or physicians
in a timely manner, constituted departures from the applicable nursing standards
of care. According to Dr. Pelton, the departures from standards of care on the
part of physicians and nurses during the missing records period were "a
substantial factor in causing and failing to prevent the severe brain damage
which [the plaintiff] suffered as a result of sepsis/meningitis which was not
treated with antibiotics in a timely manner."
In his affidavit, Dr. Hermansen attested that he had reviewed the plaintiff's medical records and that, "There is no doubt that [the plaintiff's] brain damage is due to neonatal sepsis and meningitis. There are absolutely no reasonable alternative explanations for his problems." In addition, Dr. Hermansen stated his opinions that the plaintiff presented numerous risk factors of neonatal sepsis following his birth; that antibiotic therapy for presumed neonatal sepsis should have been started at approximately five hours of age; that the failure to start antibiotic therapy was a deviation from the standards of care; and that, if antibiotics had been started in accordance with the standards of care, the plaintiff would have survived his infection with no lasting brain damage.
[21] The defendant initially contended that there was no outstanding discovery order and thus could be no sanction pursuant to Mass. R. Civ. P. 37, as amended, 390 Mass. 1208 (1984). The defendant conceded that point, however, following the judge's query, "[I]s there any question in anybody's mind that the Court has ordered these documents to be found and produced to the plaintiff?," and subsequent pronouncement, "The Court orders you to produce the entire child's record and the mother's record."
[22] The defendant's motion for reconsideration of the default order was denied. A motion for summary judgment thereafter filed by the defendant on the ground that the plaintiff's claims were time barred as a matter of law under the statute of repose as then in effect, G. L. c. 231, § 60D, as amended through St. 1979, c. 502, was denied, after a hearing, by a different Superior Court judge.
[23] The cases of Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544 (2002), and Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124 (1998), were decided after the judge's entry of sanctions in this case.
[24] This is true regardless whether the plaintiff's medical records were complete at the time they were submitted to RMF, a point which the dissenting opinion disputes. Post at .
[25] Under common law, a nonprofit hospital such as the defendant enjoyed charitable immunity from tort liability, because funds donated for charitable purposes ought not to be diverted from those purposes to pay damages in tort actions. See McDonald v. Massachusetts Gen. Hosp., 120 Mass. 432, 436 (1876). For almost one hundred years, hospitals such as the defendant, incorporated as nonprofit charitable corporations, were protected from liability in malpractice actions by the defense of charitable immunity. See, e.g., Simpson v. Truesdale Hosp., Inc., 338 Mass. 787 (1958); Roosen v. Peter Bent Brigham Hosp., 235 Mass. 66 (1920). In 1969, in Colby v. Carney Hosp., 356 Mass. 527 (1969), this court stated its intention to abolish the doctrine of charitable immunity the next time it was confronted with the issue, if the Legislature had not acted by that time. Two years later, the Legislature responded by abolishing the defense of charitable immunity from tort liability, but imposing a mandatory limit on liability "if the tort was committed in the course of activities primarily commercial in character even though carried on to obtain revenue to be used for charitable purposes." G. L. c. 231, § 85K. See Mullins v. Pine Manor College, 389 Mass. 47, 63 (1983). This court has upheld the constitutionality of the cap on damages against challenges that it violates principles of equal protection and due process and that it denies a right to a trial by jury. See English v. New England Med. Ctr., 405 Mass. 423, 427-431 (1989), cert. denied, 493 U.S. 1056 (1990).
[26] This interpretation is consistent with our treatment of the similarly worded statutory cap on governmental liability set forth in G. L. c. 258, § 2, the Massachusetts Tort Claims Act, which provides, in relevant part, that "[p]ublic employers shall be liable for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances, except that public employers shall not be liable . . . for any amount in excess of one hundred thousand dollars." See Ayala v. Boston Hous. Auth., 404 Mass. 689, 703-705 (1989); Irwin v. Ware, 392 Mass. 745, 766 (1984).
[27] In view of this conclusion, it is unnecessary to address the plaintiff's claim that he was entitled to be compensated, as a separate item of general damages, for the loss of enjoyment of life (now and in the future) that he would have experienced but for his injuries.
[28] The court, in one sentence, ante at , characterizes this situation as "more properly" a spoliation matter, while both parties' numerous briefs concede that this was not spoliation, as the destruction or loss of documents more than likely took place long before notice of possible litigation had occurred.
[29] See Barnett v. Lynn, 433 Mass. 662, 667-668 (2001) (Ireland, J., concurring); Brum v. Dartmouth, 428 Mass. 684, 708 (1999) (Ireland, J., concurring).
[30] The still existing hematology report lists the time as 7:34 A.M., while the microbiology report lists the specimen time at 6:25 A.M.
[31] We have recently held that there cannot be a separate cause of action in tort for spoliation of evidence. See Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 550-552 (2002). For the court to allow a spoliation sanction to become a default judgment would circumvent that reasoning. For this reason alone, even if the court was correct in its application of spoliation, affirming a default judgment in this case is improper.
[32] The original bill provided broad charitable immunity protection, and failed to mention the common-law defense. 1971 House Doc. No. 5801. In response, the Governor recommended the bill be amended and wrote, "I can see no justification for expanding the doctrine of charitable immunity, but rather support [an approach] which severely limits the application of the doctrine," as this defense must be balanced "against the interest of the person who is injured as a result of a tort for which the nonprofit is responsible." 1971 House Doc. No. 5976, at 2, quoting Forty-Sixth Report of the Judicial Council, Pub. Doc. No. 144 (1971).
[33] With the loss of the critical medical records, the plaintiff is foreclosed from recovering against any physicians who may have treated him during the missing record period. While the availability of these records would not expose the defendant hospital to liability in excess of the statutory cap, it certainly may expose the applicable physicians to liability. In this way, the loss of medical records directly benefits physicians of charitable hospitals by totally shielding them from liability if crucial patient records are lost. Thus, the court's decision could serve to encourage poor supervision of record keeping, as well as administrative review of physician performance, at charitable hospitals.