SHEPARD, C.J.
Jacob Gordon’s mother sued Howard Community Hospital, alleging it committed medical malpractice while caring for her son. In another count of the complaint, she sought separate damages for spoliation, saying the Hospital had lost certain medical records associated with Gordon’s care and that this loss made it impossible for Gordon to pursue a medical malpractice claim against one of his doctors, who was also a defendant.
As we explain below, many of the considerations that led us to decline to recognize first-party spoliation in Gribben v. Wal-Mart Stores, Inc., and to decline to recognize third-party spoliation in Glotzbach v. Froman in the context of workers’ compensation, apply here.
. . . .
In September 2005, the Gordons filed a complaint for damages with the Indiana Department of Insurance as required by the Medical Malpractice Act. The complaint named Howard Regional as the sole defendant and alleged that one of the hospital nurses did not conform to the applicable standard of medical care, causing damage to Jacob Gordon.
On March 27, 2006, the Gordons filed a motion to compel discovery in Howard Circuit Court. The Hospital filed affidavits dated June 5, 2006, stating that some of the records could not be located. The missing records included nursing and narrative notes from 7:45 p.m. January 6 through 2:30 p.m. January 7; labor flow records from 6 a.m. through 2:30 p.m. January 7; fetal heart monitor strips from 5:52 a.m. through 2:30 p.m. January 7; and peri-operative nurses’ notes from the caesarian section performed on January 7. (App. at 51.)
. . . .
The trial court concluded that Howard Regional had a duty to maintain the Gordons’ medical records at least through the time of the Gordons’ records request. It also concluded that under Indiana law a separate cause of action for failure to maintain these records existed and that the Hospital had breached its duty to maintain records under Indiana Code Section 16-39-7-1. The trial court held that Howard Regional “ha[d] created a significant gap in the records that would allow a medical panel or a factfinder to determine whether the care that was provided . . . met the relevant standard.” (App. at 200–01.)
Howard Regional appealed and the Court of Appeals affirmed. Howard Reg’l Health Sys. v. Gordon, 925 N.E.2d 453 (Ind. Ct. App. 2010). We granted transfer, 940 N.E.2d 823 (Ind. 2010) (table), thus vacating the opinion of the Court of Appeals.
. . . .
Two threshold questions about the Gordons’ claim are whether it falls within the general scope of the Medical Malpractice Act and whether Indiana’s statute on maintenance of health records statute creates a private right of action. . . . .
The Gordons’ underlying claim in Count II alleges medical malpractice because the “[m]aintenance of health records by providers” is so closely entwined with health care and because records in general are so important to a medical review panel’s assessment of whether the appropriate standard of care was met. Ind. Code §§ 16-39-7-1, 34-18-10-22(a). The Gordons rightly acknowledge how important health care records are for “the nature and quality of the health care provided, for billing purposes, and peer review.” (Appellee’s Br. at 16.) (emphasis added) Surely the skillful, accurate, and ongoing maintenance of test and treatment records bears strongly on subsequent treatment and diagnosis of patients. It is a part of what patients expect from health care providers. It is difficult to contemplate that such a service falls outside the Act.
We thus move to the Gordons’ contention that the statute on maintenance of health records creates a private right of action separate from the Medical Malpractice Act. The Gordons maintain that the enactment of new subsection (d) “implicitly recognizes that there is civil liability on the part of a healthcare provider if it violates Ind. Code § 16-39-7-1.” (Appellee’s Br. at 20.)
. . . .
As it existed in 2008 and during the earlier period of the events surrounding Jacob Gordon‘s birth, Chapter 16-39-7 of the Indiana Code (“Maintenance of Health Records, X-Rays, and Other Tests”) provided, in language that is still in the Code:
Sec. 1. (a) As used in this section, ―provider‖ means the following: * * *
(13) A hospital or facility licensed under IC 16-21-2 or IC 12-25 or described in IC 12-24 or IC 12-29.
(b) A provider shall maintain the original health records or microfilms of the records for at least seven (7) years.
(c) A provider who violates subsection (b) 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 under this title or IC 25.
Effective July 1, 2009, the legislature added subsection (d):
(d) A provider is immune from civil liability for destroying or failing to maintain a health record in violation of this section if the destruction or failure to maintain the health record occurred in connection with a disaster emergency as declared by the governor under IC 10-14-3-12 or other disaster, unless the destruction or failure to maintain the health record was due to negligence by the provider.
I.C. § 16-39-7-1.
The legislative genealogy of these provisions sheds light on the issue at hand. Subsections (a) thru (c) previously appeared in Indiana Code § 16-4-8-2 (1992). In 1993, the General Assembly created Chapter 16-39-7 and placed (a) thru (c) there. At the same time, it added Section 2, addressing the “Maintenance of x-rays by providers; mammograms; violations; civil liability.” P.L. 2-1993, § 22; Ind. Code § 16-39-7-2 (1993). [Footnote omitted.] The addition of subsection (d) to Section 1 in 2009 came after the Gordons filed their complaint.
As the statutes existed at the time of Jacob’s birth, a violator of Chapter 7, Section 1, would be subject to disciplinary sanctions under the law that governs the provider‘s licensure, registration, or certification under Title 16 or Title 25. By contrast, a violator of Section 2 would be exposed to the same disciplinary sanctions but would possess substantial immunity created by subsection (e). [Footnote omitted.] The language of subsection (e) in Section 2 is similar to the language added in 2009 to subsection (d) of Section 1. Recalling that Sections 1 and 2 were crafted at the same time, the legislature could have created civil liability for a violation of Section 1 and did not do so. This differential treatment says a fair amount about legislative intent as respects the law at the time relevant to this lawsuit.
Moreover, the structure of Section 1(d) reads largely as a grant of immunity to hospitals that lose records due to natural disasters. It was enacted in the wake of a storm that destroyed the medical records of a leading hospital. [Footnote omitted.] We conclude that neither the rules of statutory construction nor the history of the enactment lead to the idea that Section 1(d) confers a private remedy for the Gordons.
Is This “First-Party” or “Third-Party”?
In 2005, we addressed claims of spoliation in answering two certified questions from the United States District Court for the Southern District of Indiana. The questions were
1. Does Indiana law recognize a claim for “first-party” spoliation of evidence; that is, if an alleged tortfeasor negligently or intentionally destroys or discards evidence that is relevant to a tort action, does the plaintiff in the tort action have an additional cognizable claim against the tortfeasors for spoliation of evidence?
2. If so, what are the elements of the tort, and must a plaintiff elect between pursuing the spoliation claim and utilizing an evidentiary inference again the alleged tortfeasor in the underlying action?
Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 350 (Ind. 2005). Our answers were limited to first-party spoliation, as distinguished from third-party spoliation, and we differentiated the types. First-party spoliation refers to the spoliation of evidence by a party to the principal litigation. Id. (citing Temple Cmty. Hosp. v. Superior Court, 976 P.2d 223 (Cal. 1999)). Third-party spoliation refers to spoliation by a non-party. Id.
. . . .
Our decision in Gribben to forgo recognizing a distinct cause of action for first-party spoliation likewise comports with the approach of many courts that have instead addressed such allegations in the underlying litigation through sanctions, including adverse inference instructions and other mechanisms. . . . .
. . . .
. . . In declining to recognize first-party spoliation claims we concluded,
Notwithstanding the important considerations favoring the recognition of an independent tort of spoliation by parties to litigation, we are persuaded that these are minimized by existing remedies and outweighed by the attendant disadvantages. We thus determine the common law of Indiana to be that, 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 under Indiana law.
Gribben, 824 N.E.2d at 355. We did acknowledge that fairness and integrity of outcome and deterrence might require a separate tort remedy against persons who are not parties to the principal litigation, but as the certified question did not necessitate examination of third-party spoliation, we did not address it further.
The following year in Glotzbach v. Froman, we first considered whether an employee could sue his employer in tort, outside the Worker’s Compensation Act, for loss of evidence about his injury on the job, evidence said to be needed for litigation against the maker of a pump that exploded at the worksite. 854 N.E.2d 337 (Ind. 2006). We concluded the disadvantages in first-party spoliation militated against recognizing a third-party claim in that setting:
Proving damages in a third-party spoliation claim becomes highly speculative and involves a lawsuit in which the issue is the outcome of another hypothetical lawsuit. The jury must somehow find all the elements of a product liability case, immediately determining whether a product defect caused the injury, as opposed to inadequate maintenance, or other intervening events. The jury would be asked to determine what the damages would have been had the evidence been produced and what the collectibility of these damages would have been. We think this exercise often could properly be described as “guesswork.”
Id. at 341 (citing Petrik v. Monarch Printing Corp., 501 N.E.2d 1312, 1320 (Ill. App. Ct. 1986)).
Necessarily working from the background of Gribben and Glotzbach, and our observation that fairness and integrity of outcome might sometime require recognizing such a claim, the Gordons urge that theirs is an instance warranting an independent tort for third-party spoliation. The theory runs like this: when it comes time to prove the Gordons’ claim against Dr. Gard, the Hospital’s loss of medical records hinders their ability to pursue a claim against Dr. Gard. Thus, they say, the Hospital is a third party against whom a separate tort for spoliation is needed. The Hospital, of course, is also a first-party defendant.
We conclude that splitting up the defendants, and the counts against them, blurs the distinction between actual defendants and others who may possess evidence but are not parties to the litigation. What the Gordons’ case presents is really a claim for first-party spoliation, carrying the same advantages and disadvantages we weighed in Gribben and Glotzbach.
Sullivan, Rucker, and David, JJ., concur.
Dickson, J., concurs in result with separate opinion:
I first disagree with the Court’s view that the Gordons’ spoliation claim against the Hospital should generally be deemed a claim of medical malpractice governed by the Indiana Medical Malpractice Act. Rather, I am in accord with the thoughtful analysis of the Court of Appeals, which emphasizes that the essence of the claimed misconduct by the Hospital in losing or destroying crucial records does not involve any exercise of professional medical judgment or care by the Hospital, and thus should not be subject to Act. . . . .
In addition, I depart from my colleagues’ unwillingness to hold that a violation of Indiana Code Section 16-39-7-1, requiring the Hospital to maintain its medical records, may support a private cause of action for negligence per se. In my view, the Court of Appeals comprehensively examined this question, properly applying our analysis in Kho v. Pennington, 875 N.E.2d 208 (Ind. 2007), and other relevant authorities, to conclude that the statute “imposes on entities subject to the statute a duty to maintain their health records, and that a breach of that duty is negligence per se.” Gordon, 925 N.E.2d at 463.
Finally, with respect to the spoliation claim, the Court explains its decision to treat the Gordons’ spoliation action against the Hospital as a prohibited claim for first-party spoliation for the reason that it carries the same advantages and disadvantages as first-party claims. The import of this rationale is that, in their claims for medical negligence against the separate health care providers, the plaintiffs would be entitled to remedies penalizing the independent providers for the Hospital’s loss or destruction of crucial medical records. I do not agree that such non-Hospital defendants should be subjected to jury instructions authorizing adverse inferences of medical negligence, to the preclusion of defenses such as denial of negligence, or to other such remedies by reason of the Hospital’s misconduct. I thus disagree with the Court’s treating all the defendants together to characterize the claim against the Hospital as one for first-party spoliation. The trial court correctly determined that, to the extent that the Gordons are claiming the loss of records impairs their medical negligence claim against the Hospital, such claim is a “first-party” spoliation claim. But as to the Gordons’ claim that the Hospital’s spoliation impedes their medical negligence claims against the other defendants, such claims are “third-party” spoliation claims.
While departing from the majority’s view that the Gordons’ claim against the Hospital is a prohibited first-party spoliation claim, I agree to reverse the trial court’s grant of partial summary judgment favoring the Gordons because of my belief that Indiana common law should not be expanded to permit third-party spoliation claims. . . . Notwithstanding the “fairness and integrity of outcome” concerns in Gribben, upon further reflection I am persuaded that the problem of uncertain and speculative causation and damages will be a fatal obstacle to most third-party spoliation claims. Sympathy for the resulting wrongful harm incurred cannot, in my view, obviate the traditional tort law requirements for adequate proof of damages and causation.