Vaidik, C.J.
Case Summary
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.
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As Shirey acknowledges, our General Assembly has not expressly created a private right of action for violations of the record-production statute…
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And third, a holding that the record-production statute confers a private right of action would be seriously at odds with our Supreme Court’s interpretation of the closely related record-retention statute, Indiana Code section 16-39-7-1. In Howard Regional Health System v. Gordon, 952 N.E.2d 182 (Ind. 2011), the Court held that no private right of action exists under that statute, which provides, in subsection (b), “A provider shall maintain the original health records or microfilms of the records for at least seven (7) years.” Shirey offers no reason, and we can think of none, why the legislature would create a right of action against a health care provider who fails to produce records but not against a provider who fails to maintain records in the first place.
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…Therefore, the fact that Indiana Code section 16-39-1-1 was arguably designed to benefit individual patients does not alter our conclusion that the legislature did not intend to create a private right of action. We affirm the trial court’s grant of summary judgment in favor of Dr. Flenar on that issue.
II. Spoliation
Shirey argues that even if she does not have a private right of action under Section 16-39-1-1, she has a valid common-law claim for spoliation of evidence. The latter claim is not simply a reframing of the former. While both claims ultimately arise from Dr. Flenar’s failure to provide Shirey’s medical records, they are distinguishable because the spoliation claim does not depend on a violation of the record-production statute (or, for that matter, the recordretention statute, Indiana Code section 16-39-7-1). Rather, it is an allegation that Dr. Flenar lost or destroyed evidence that he knew or should have known was relevant to Shirey’s personal-injury claim relating to the car accident.
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Balancing the Webb factors in this case, we hold that the trial court erred by concluding that Dr. Flenar did not have a duty to preserve Shirey’s medical records. [Footnote omitted.]
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In sum, we conclude that all three Webb factors favor Shirey. We therefore hold that Dr. Flenar had an enforceable duty to preserve Shirey’s medical records once she requested them from him and that the trial court erred by granting Dr. Flenar summary judgment on Shirey’s spoliation claim. As with any negligence case, there are other elements beyond duty—namely, breach, proximate cause, and damages. But those issues are beyond the scope of Dr. Flenar’s motion for summary judgment. In the trial court, Dr. Flenar did not address spoliation until his reply brief, and even then his argument was limited to three paragraphs. He said little about the particulars of Shirey’s claim, focusing instead on general public-policy arguments. And the only evidence he designated—his own affidavit about his struggles with his software provider—is insufficient to negate a spoliation claim as a matter of law. Given the narrow scope of Dr. Flenar’s argument, as well as our general preference for letting even marginal cases proceed to trial, see Hughley, 15 N.E.3d at 1004, we will allow Shirey’s spoliation claim to proceed. [33]
Affirmed in part, reversed in part, and remanded.
Baker, J., concurs with opinion.
Crone, J., concurs with opinion.
Baker, Judge, concurring.
I am compelled to concur, though I do so with great dissatisfaction. While I acknowledge that we are bound to abide by our Supreme Court’s ruling in Gordon, I take the opportunity to respectfully disagree with the holding in that case.
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To tell the citizens of this State that their physicians are required to maintain their medical records, but that there is no consequence for a failure to do so— even when that failure results in financial or health-related consequences to patients—is to make the requirement wholly meaningless. I encourage our Supreme Court to reconsider the Gordon holding. But in the meantime, as I am bound to abide by it, I reluctantly concur with the majority.
Crone, Judge, concurring.
I fully concur as to issue II. I also concur as to issue I, but only reluctantly, and only because we are bound by our supreme court’s restrictive approach to recognizing statutorily created private rights of action. See Gordon, 952 N.E.2d at 186-88 (finding no private right of action under record-retention statute); see also Doe #1, 81 N.E.3d at 202-04 (finding no private right of action under statute prohibiting Department of Child Services from identifying reporters of child abuse)… Indiana Code Section 16-19-3-18(b) provides that the State Department of Health “may bring an action to enforce” Title 16, which includes the record-production statute, and that “[t]he court in such an action has jurisdiction to compel or enforce the provisions of this title by injunction.” An enforcement action would be futile in cases like this one, where the medical records at issue have been destroyed. Were it not for our supreme court’s holding in Gordon, I would be inclined to hold that Shirey has a private right of action against Dr. Flenar under the record-production statute, which was designed primarily to protect individual patients and, at least in this situation, is incapable of being enforced by the State Department of Health.