Maryland Court of Appeals upholds Trial Court's Decision Not to Give Spoliation Instruction Regarding Operative Note

 In March 2010, the Maryland Court of Special Appeals upheld a trial court's decision not to give a Plaintiff a spoliation instruction after it was discovered that a surgeon had failed to dictate a key operative note.  The case arose out of a patient who came into a hospital Emergency Room complaining of abdominal pain.  A surgeon was consulted.  The surgeon diagnosed the patient with gallbladder disease and possible small bowel obstruction.  Subsequent tests did not confirm the obstruction, radiographically.  The surgeon opted performed surgery to remove the gallbladder.  During the surgeon, the surgeon testified that he saw some dilitation (swelling) of the small bowel but did not observe clear signs of an obstruction.  Following the surgery, the patient experienced complications that necessitated 2 additional surgeries and the removal of a large percentage of the small bowl, all because of an undiagnosed obstruction.  The patient subsequently sued the surgeon for initially failing to diagnose the obstruction and causing the additional complications and surgeries.  During discovery, the patient sought the production of the operative report, a report that hospital policies mandated be created after each procedure.  No such report was ever located.  As a result, the plaintiff sought a spoliation instruction, arguing that she was entitled to an adverse inference (i.e., permitting the jury to infer that the report contained unfavorable language against the surgeon).  The plaintiff argued that the lack of a report made it nearly impossible for her expert's to evaluate the surgeon's actions.  The trial court refused to give that instruction. 

On appeal, the appellate court affirmed, concluding that although the spoliation doctrine could be construed as extending to the non-creation of evidence, the trial court had the ultimate discretion on spoliation instructions and whether to give them to the jury.  In short, the issue was a factual one that depends on the circumstances in each case.    See Keyes v. Lerman, Case. No. 2290 (March 30, 2010).