MAY, J.
Jacob was delivered by emergency cesarean section at about 2:30 p.m. on January 7, 1999 at Howard Community Hospital. Gordon contacted an attorney to review the medical care the Hospital provided, then filed with the Department of Insurance a proposed malpractice complaint for damages against the Hospital. She later amended the complaint to include the doctor who delivered Jacob, the doctor who cared for him after his birth, and the Community Family Health Center.
Gordon’s counsel requested evidence from the Hospital. The Hospital responded eighteen months later with an affidavit stating some of the records could not be located. The missing records included nursing and narrative notes from 7:45 p.m. January 6 through 2:00 p.m. January 7; labor flow records from 6:00 a.m. through 2:00 p.m. January 7; peri-operative nurses’ notes from the c-section on January 7; and fetal heart monitor strips from 2:50 a.m. through 2:00 p.m. January 7.
Gordon retained a neonatal doctor to review the records that were provided and determine whether the care the obstetrician provided to Jacob and Gordon conformed to medical standards. The doctor could not provide an opinion because of the missing records.
Gordon moved for partial summary judgment on whether the Hospital had a duty to preserve the evidence, whether it breached the duty, and whether the breach made it impossible for Gordon to pursue the malpractice action against the obstetrician. We accepted jurisdiction over this interlocutory appeal.
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The Hospital argues the trial court had no subject matter jurisdiction to hear Gordon’s spoliation claim because the Medical Malpractice Act, Ind. Code ch. 34-18-8, requires a proposed complaint be presented to a medical review panel and the panel give its opinion before an action against a health care provider may be commenced in court.
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The trial court had jurisdiction to hear Gordon’s spoliation claim. [Footnote omitted.] . . . .
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Like the patient in Lomax, whose claim was based on a slip and fall, and thus was not a medical malpractice claim that had to be sent to a medical review panel, and like the plaintiff in H.D., whose claim was one of “ordinary negligence, unrelated to the provision of medical care or treatment,” id., Gordon’s claim was premised on the tort of spoliation of evidence, and was unrelated to “the promotion of a patient’s health or the provider’s exercise of professional expertise, skill or judgment.” Collins, 552 N.E.2d at 510. ….
The Act is “a precisely tailored response to the difficulties encountered by health care providers in obtaining professional liability insurance,” so it does not encompass “the sort of liability a provider is exposed to generally, whether that be liability arising as a consequence of the condition of the health care provider’s premises or a criminal act.” Id. Gordon was not obliged to present her spoliation claim to a medical review panel that would determine whether the loss of the records was outside the appropriate standards of medical care. See Ind. Code § 34-18-10-22 (panel’s “sole duty” is to express its expert opinion as to whether the evidence supports the conclusion the defendant “acted or failed to act within the appropriate standards of care”).
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The trial court correctly determined the Hospital had a “duty imposed by statute,” (App. at 201), to maintain its medical records and breached its duty. A hospital is required by Ind. Code § 16-39-7-1 to maintain its health records for seven years. If it violates that section it “commits an offense for which a board may impose disciplinary sanctions against the provider under the law that governs the provider’s licensure, registration, or certification.” Id.
We hold violation of Ind. Code § 16-39-7-1 is negligence per se and therefore a private action is available to Gordon. [Footnote omitted.] . . . .
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On the facts before us, an action for third-party spoliation of evidence is available to Gordon. In Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 355 (Ind. 2005), our Indiana Supreme Court held that first-party [Footnote 7: “First party” spoliation “refers to spoliation of evidence by a party to the principal litigation,” and is distinguished from “third party” spoliation, which refers to spoliation by a non-party. Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 350 (Ind. 2005). Gordon alleges third-party spoliation, as she alleges the Hospital lost evidence she needed in order to pursue an action against her obstetrician.] intentional spoliation of evidence is not recognized in Indiana as an independent tort claim. Therefore, “if an alleged tortfeasor negligently or intentionally destroys or discards evidence that is relevant to a tort action, the plaintiff in the tort action does not have an additional independent cognizable claim against the tortfeasor for spoliation of evidence.” Id.
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In Glotzbach, our Supreme Court found no third-party spoliation claim was available, again on the basis there was no duty in the employer-employee context to preserve evidence. 854 N.E.2d at 339. A contract worker for an environmental waste services corporation sued the corporation for intentional spoliation of evidence he needed for his claim against the manufacturer of an “explosion-proof” electric pump that exploded when he was using it. Relying on Murphy, the Court said:
[A]n employer will virtually always be aware of an injury occurring in the workplace. If that knowledge were sufficient to establish a special relationship, the practical effect would be that an employer always has a duty to preserve evidence on behalf of its employee for use in potential litigation against third parties. This would directly conflict with Murphy as well as the law in most other states that have addressed the specific issue of a third-party spoliation claim by an employee against an employer based on evidence relevant to an industrial accident covered by worker’s compensation.
Id. at 339-40.
The Glotzbach Court went on to note the policy considerations that are the controlling factor in declining to recognize spoliation as a tort under these circumstances. It noted, as it did in Gribben, that evidentiary inferences are not available as a remedy for or deterrent to third-party spoliation, but that many of the other remedies remain applicable. Criminal sanctions apply equally to third parties and first parties, sanctions under the Indiana Rules of Professional Conduct are available if attorneys for the third party are involved in the misconduct, and courts can issue contempt sanctions against non-parties who frustrate the discovery process by suppressing or destroying evidence. Id. at 341.
But the Court found the most significant policy reason not to allow a third party spoliation claim in that case was that “the employer is entitled to recover some of its worker compensation benefits if the employee can establish a product liability claim.” Id. (citing Ind. Code § 22-3-2-13). “It is in the employer’s interest to preserve evidence that may aid in pursuing these subrogation rights against the manufacturer.” Id [Footnote omitted.] In the case of medical malpractice, by contrast, a health care provider might perceive the absence of evidence, and not its preservation, to be in its best interests.
As the Hospital in the case before us had a duty to retain the evidence it lost, this case is more like Thompson than Murphy or Glotzbach where there could be no spoliation because the employer had no duty to preserve evidence. Therefore, we hold an action for third-party spoliation of evidence is permissible under the facts of this case.
KIRSCH, J., and DARDEN, J., concur.