University of Baltimore law professor Richard W. Bourne wrote an article published this year in the Arkansas Law Review articulating the theory that there should be an independent tort claim when a doctor destroys evidence or when a doctor fails to disclose to the patient that there has been a breach of the appropriate standard of care that causes injury. Professor Bourne would limit this tort to cases where (1) the wrong is serious, and (2) the failure to reveal is intentional.
Professor Bourne also quotes Harvard evidence professor Charles R. Nesson on the inherent problem in making the punishment for spoliation of evidence “assuming that the spoliators … destroy the evidence because it [is] damaging to their case, none of these sanctions puts the spoliator in a worse position than he would have been in had he produced the evidence.”
In other words, if the document or evidence indicates the worst possible scenario, the defendant has nothing to lose, except possibly inflaming the jury by destroying the evidence. Of course, in Maryland medical malpractice cases, there are ostensibly ramifications with the Maryland Board of Physicians for doctors destroying medical records. But as this blog recently underscored, the Maryland Board of Physicians does not appear to be an effective enforcer of medical ethics.
I think many doctors who support medical malpractice tort reform will reflexively roll their eyes at the suggestion from a lawyer that we need another medical malpractice tort. But as a lawyer I would certainly support this rule in legal malpractice cases in Maryland. Similarly, I think a lot of Maryland doctors who want to rid the medical profession of dishonest doctors would also support a tort to punish doctors who deliberately destroy evidence and/or do not reveal to the patient that serious medical malpractice has been committed.
So what will happen with this bright idea? Absolutely nothing. The Maryland Court of Appeals is not in the mood to create a new tort in medical malpractice cases and it will be impossible to gin up the inertia in the Maryland General Assembly for anything that will impose new liability on Maryland doctors.