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Shirey v. Flenar

Court of Appeals of Indiana

December 21, 2017

Mary (Jones) Shirey, Appellant-Defendant,
Rex Flenar, M.D., Appellee-Plaintiff

         Appeal 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, Indiana.

          Vaidik, Chief Judge.

         Case Summary

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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.

         [¶3] 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.

         [¶4] 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 records.

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.

         [¶5] 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.

         [¶6] 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.

         [¶7] After a short hearing, the trial court issued an order granting Dr. Flenar's motion, largely incorporating his legal arguments on both issues.

         [¶8] Shirey now appeals.

         Discussion and Decision

         [¶9] 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 ...

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