from the Allen Superior Court The Honorable Craig J. Bobay,
Judge Trial Court Cause No. 02D02-1608-MI-000837.
Attorneys for Appellant Thomas D. Blackburn David A.
Singleton Blackburn & Green Fort Wayne, Indiana.
Attorney for Appellee Mark W. Baeverstad Ashley M.
Gilbert-Johnson Rothberg Logan & Warsco LLP Fort Wayne,
Vaidik, Chief Judge.
After Mary Shirey was injured in a car accident, she sought
treatment from Dr. Rex Flenar. A few weeks later,
Shirey's lawyer asked Dr. Flenar for her medical records.
Dr. Flenar failed to respond for several years before
eventually indicating that the records were destroyed by his
medical-records software provider. Shirey has sued Dr.
Flenar, claiming that she has a private right of action under
Indiana Code section 16-39-1-1, which requires a healthcare
provider to supply a patient's medical records upon
request by the patient. She also asserts that, to the extent
Dr. Flenar lost or destroyed the records, she has a claim for
third-party spoliation of evidence, because without the
records she was unable to fully substantiate her
personal-injury claim stemming from the accident. The trial
court granted Dr. Flenar summary judgment on both claims, and
Shirey appeals. She has failed to persuade us that our
General Assembly intended to create a private cause of action
for a violation of Section 16-39-1-1. However, we conclude
that Dr. Flenar had a duty to preserve the records under the
circumstances of this case and is therefore properly subject
to a cause of action for spoliation. As such, we affirm in
part, reverse in part, and remand this matter to the trial
court for further proceedings.
and Procedural History
Shirey filed her complaint against Dr. Flenar in August 2016.
She alleged that she began treating as a patient of Dr.
Flenar on March 24, 2013; that she was injured in a car
accident less than a week later, on March 30, "due to
the negligence of a third party"; and that she
"sought treatment thereafter" from Dr. Flenar.
Appellant's App. Vol. II p. 14. She further claimed that
she, "by counsel, " requested her medical records
and bills from Dr. Flenar on April 25, 2013; that she did not
receive a response from Dr. Flenar; and that she and her
lawyer made multiple follow-up requests over the next three
years (the last on March 11, 2016), none of which Dr. Flenar
responded to. Id. at 14-15.
Shirey included two counts in her complaint. In Count I, she
alleged that Dr. Flenar violated Section 16-39-1-1 (which we
also call the "record-production statute"), which
provides, in subsection (c), "On written request and
reasonable notice, a provider shall supply to a patient the
health records possessed by the provider concerning the
patient." In Count II, she alleged in the alternative
that Dr. Flenar "may no longer be in possession of the
medical records because he lost or destroyed them."
Id. at 16. She claimed, generally, that she
"suffered injury by being refused access and use of her
medical records and bills" and, more specifically, that
she "suffered damages by being rendered incapable of
completely documenting her injury claim for damages from her
March 30, 2013 accident due to the lack of complete medical
evidence[.]" Id. at 15.
Dr. Flenar filed a motion for summary judgment in which he
claimed that his medical-records software provider destroyed
Shirey's records without his knowledge:
In 2013, Dr. Flenar was practicing medicine as Kendallville
Family Care Center, Inc., which was his private practice. Dr.
Flenar maintained electronic medical records with regard to
each patient. In order to maintain these medical records, Dr.
Flenar utilized an electronic medical records software
program called "MyWay, " which was developed by
AllScripts. MyWay EMR software included the patient's
history, clinical charting, ePrescribing, lab orders and
results, and all other records that would have been contained
in a patient's chart. In early 2014, Dr. Flenar was
informed by AllScripts that it would no longer support the
MyWay software and that he would need to purchase a new EMR
software program from AllScripts. Since he had encountered
very poor service from AllScripts with the MyWay software, he
decided to use a different EMR software called Practice
Fusion. MyWay was incompatible with the new software so he
began using two different EMR's, Practice Fusion for
creating and maintaining an EMR going forward, and MyWay to
access old pat[i]ent records. Dr. Flenar joined a class
action lawsuit against AllScripts for its decision to no
longer support MyWay. He was notified in April or May of 2015
that the class action was settled and that he could continue
to access the MyWay records for another year if he agreed to
pay $1, 000. Dr. Flenar signed up for that option but was
never billed and in June, 2015, he was cut off from his
access to his patient's records in MyWay. In July, 2015,
Dr. Flenar closed his practice in Kendallville. After getting
cut off from his access to the MyWay records, Dr. Flenar
called AllScripts, but received no [cooperation]. He found an
email address on the internet that was supposed to be used if
he needed to contact AllScripts to obtain  copies of his
patient's records, but that did not work either. After
multiple unsuccessful attempts to obtain Dr. Flenar's
patients' medical records, he was informed that
AllScripts destroyed all of his patients' records and
that he will not be able to obtain a copy of Ms. Shirey's
office chart. Dr. Flenar does not recall receiving any notice
that AllScripts would destroy his patients' medical
Id. at 27-28 (citations omitted). Dr. Flenar did not
explain why he failed to provide Shirey's records between
April 2013 and June 2015, when he apparently still had access
to them. Moreover, as the legal basis for his motion, Dr.
Flenar did not disclaim responsibility for the loss of the
records. Instead, he asserted that Shirey's lawsuit is
one for medical malpractice and that Shirey was therefore
required to present her claims to a medical review panel
before taking them to court, pursuant to the Indiana Medical
Malpractice Act. See Ind. Code § 34-18-8-4. The
only evidence Dr. Flenar designated in support of his motion
was Shirey's complaint and his own affidavit explaining
what happened with Shirey's records.
In her response to Dr. Flenar's motion, Shirey argued
that her suit is not governed by the Medical Malpractice Act
"because she has not alleged any bodily injury arising
out of malpractice and the substance of her claim is not
within the scope of the Act." Appellant's App. Vol.
II p. 50. She asserted that she has a private right of action
for Dr. Flenar's violation of the record-production
statute as well as a claim for third-party spoliation of
evidence in that Dr. Flenar's actions "directly
caused her to suffer damages through incomplete evidence in
her principal claim." Id. at 59. Shirey did not
designate any evidence other than the "pleadings that
have been filed in this cause and are on file with the
Court." Id. at 60.
In reply, Dr. Flenar abandoned his medical-malpractice theory
and addressed the record-production statute and the issue of
spoliation for the first time. He argued that Section
16-39-1-1 does not confer a private right of action.
Regarding spoliation, he maintained that "public policy
weighs against recognizing a third-party spoliation claim in
this matter" because "any alleged damages would be
highly speculative" and Shirey "has not alleged bad
faith by Dr. Flenar or alleged that he affirmatively acted to
destroy evidence to avoid or lessen his liability."
Id. at 66. Dr. Flenar did not designate any
additional evidence with his reply.
After a short hearing, the trial court issued an order
granting Dr. Flenar's motion, largely incorporating his
legal arguments on both issues.
Shirey now appeals.
Shirey contends that the trial court should not have granted
Dr. Flenar summary judgment on either the statutory claim or
the spoliation claim. "When reviewing summary judgment,
we apply the same standard as the trial court: summary
judgment is proper only when the designated evidence shows no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law." Megenity
v. Dunn, 68 N.E.3d 1080, 1083 (Ind. 2017) (citing Ind.
Trial Rule 56(C)). "Indiana consciously errs on the side
of letting marginal cases ...