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    A new state supreme court case in Alaska has expanded a national legal trend. When hospitals are negligent in maintaining medical records, previous court cases have forced malpractice defendants to carry the burden of proving that the medical care they provided was appropriate. ln Sweet V. Sisters of Providence et al, a 1994 decision, the state supreme court of Alaska went further and told the hospital that it would have to prove that the presumed medical negligence did not cause the injury as well.


    In this case, the plaintiffs, Gary and Beverly Sweet, were the parents of Jacob Sweet, an infant. The baby was born healthy, but now suffers from profound mental retardation, cerebral palsy and blindness. The Sweets claimed that an infection arising from Jacob's circumcision site led to a generalized systemic infection or to meningitis, which caused his brain damage.


    The hospital was missing Jacob's narrative nursing notes, a medication sheet, a graphic record, and a nursing care flow sheet. These missing records were the basis for the Sweets‘ claim against the hospital for spoliation of evidence. There is no claim that these records were missing during any critical moments of Jacob's hospitalization or that these missing records adversely affected his care. However, it was the Sweets‘ contention that the missing records precluded them from succeeding on their medical negligence claim and that, due to the absence of these records they were entitled to a conclusive presumption of negligence.


    The court agreed with this reasoning, stating, "Just as the missing records may have impaired the Sweets ability to prove medical negligence, they would in the same way impair the Sweets‘ ability to prove a causal connection between any negligence and Jacob's injuries." Then the court described the standard for shifting the burden of proof to the defendant, by following the 1987 Florida Supreme court decision in Public Health Trust V. Valcin. First, the plaintiff must establish the importance of the missing records; second, the court must find that it's the defendant's fault that the records are missing. Given the findings in the Sweet case, the court concluded that the presumption created by the missing records was that the hospital's medical treatment was beneath the standard of care. It was then up to the hospital to prove that the treatment it provided to the baby was appropriate, and to further prove that the treatment did not cause Jacob's injuries.


    As a practical matter, then, the jury must decide whether the hospital has established that its loss of the records was excusable. lf the jury finds that the hospital was at fault and the loss of the records was inexcusable, the jury must be instructed to give the hospital the burden of proving that its medical treatment was appropriate and did not cause the injuries.


    To determine the scope of the hospital's duty to maintain records, the court in the Sweet case looked to the duty set by local statutes and regulations, as well as the standards set out by the Joint Commission on the Accreditation of Hospitals. These are the types of standards that health care professionals must familiarize themselves with and incorporate as a very real part of their professional life.


    There is a correlation to medical negligence cases, where the duty that must be met by a medical professional is that of acting as a reasonable health care provider under similar circumstances. In a similar way, the duty for maintaining records includes acting in conformity with established rules. Any lack of specificity will be left up to the jury's judgment, and reasonableness will become the guiding factor.


    Previous court cases had already suggested a growing trend to find negligent destruction of records grounds for shifting the burden of proof. But the Alaska Supreme court went far beyond that. As a result, it is imperative that today's health care professionals keep and maintain proper records for all of their patients or face the very real task of having to carry the difficult burden of both production of evidence and causation.


    Adequacy of Medical Records

    by Attorney Frank E. Reardon

    December 1994