Mathias, J.
Rickie Henderson (“Henderson”) filed a complaint in Vigo Superior Court against Dr. Elliott Kleinman (“Dr. Kleinman”). The complaint alleged that Dr. Kleinman failed to meet the applicable standard of care both in his record keeping and in his treatment of Henderson. Summary judgment proceedings ensued, and the trial court granted summary judgment in Dr. Kleinman’s favor after concluding that the doctor was entitled to judgment as a matter of law. Henderson appeals and argues that the trial court erred when it granted Dr. Kleinman’s motions for summary judgment and disregarded the medical review panel’s opinion that Dr. Kleinman’s record keeping failed to meet the applicable standard of care.
We affirm.
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The Medical Review Panel (“the Panel”) reviewed her complaint and Henderson’s patient records. On April 16, 2015, the Panel issued the following opinion:
The panel is of the unanimous opinion that the record keeping of the Defendant fails to meet the standard required, and that the lack of documentation makes it impossible for the panel to decide whether the evidence supports or does not support a conclusion that the Defendant failed to comply with the appropriate standard of care in his treatment of the Plaintiff.
Appellant’s App. Vol. II, p. 86.
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Henderson argues that a physician has a duty to maintain and keep adequate patient records. Therefore, the Panel opinion “establishes that there was evidence presented to the trial court demonstrating a failure to meet the standard of care with regard to defendant’s legal duty to keep and maintain adequate records of the plaintiff’s care.” Appellant’s Br. at 7.
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This is an extremely unusual case. There is no statutory authority or reported case law establishing a duty to maintain “adequate” records. Indiana Code section 16-39-7-1 requires doctors to keep records, and it would not be unreasonable to conclude that the duty to keep records requires that the doctor’s records be adequate to determine what facts the doctor relied on to make a diagnosis, including the patient’s relevant medical history, and the course of treatment recommended by the doctor. At a minimum a doctor’s records should include sufficient information so that the Medical Review Panel can make a determination whether the doctor met the applicable standard of care. And if the sufficiency of medical records was a controlling factor in the determination of whether Dr. Kleinman’s treatment of Henderson met the applicable standard of care, our review would end here.
However, even if we assume that a physician has a duty to keep adequate records, whether Dr. Kleinman kept adequate records is a question of fact. [Footnote omitted]…
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In response to the motion for summary judgment, Henderson did not designate any evidence to that would establish that Dr. Kleinman’s treatment of her fell below the applicable standard of care. [Footnote omitted.] And if Dr. Kleinman did not breach his duty to Henderson, her claim for medical malpractice fails as a matter of law.
Henderson believes that the Panel opinion rebuts Dr. Miller’s opinion that Kleinman met the applicable standard of care. But the Panel only found that “lack of documentation makes it impossible for the panel to decide whether the evidence supports or does not support a conclusion that the Defendant failed to comply with the appropriate standard of care in his treatment of the Plaintiff.” Appellant’s App. Vol. II, p. 86. We firmly believe that the presence or absence of medical records is certainly a factor in the determination of whether or not medical malpractice occurred in any case. However, in the face of an admissible affidavit from a competent expert opining that Dr. Kleinman’s care of Henderson was within the applicable standard of care notwithstanding his extremely poor recordkeeping and deposition testimony from Panel members that the surgeries were adequately performed and appropriate for Henderson’s diagnosis, it is inadequate as a matter of law to respond solely by pointing only to the Panel’s finding that Dr. Kleinman’s record-keeping failed to meet the applicable standard.
Dr. Kleinman met his burden as the summary judgment movant to affirmatively negate an element of Henderson’s claim. The burden then shifted to Henderson to come forward with contrary evidence requiring resolution by a trier of fact. See Hughley v. State, 15 N.E.3d at 1003. Henderson failed to do so. [Footnote omitted.] We therefore affirm the trial court’s grant of summary judgment in Dr. Kleinman’s favor.
Affirmed.
Barnes, J., concurs.
Najam, J., concurs with a separate opinion.
Najam, Judge, concurring.
I concur, but write separately to emphasize the injustice caused by Dr. Kleinman’s failure to maintain adequate and accurate medical records, which prevented the Medical Review Panel from rendering an opinion on the merits of Henderson’s medical malpractice claim. As our Supreme Court has acknowledged, “the ‘[m]aintenance of health records by providers’ is . . . closely entwined with health care and . . . records in general are . . . important to a medical review panel’s assessment of whether the appropriate standard of care was met.” Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 186 (Ind. 2011). It should follow, then, that a health care provider’s failure to maintain documentation of a patient’s treatment sufficient to enable a Medical Review Panel to form an opinion on alleged medical malpractice would support a claim against the provider. I urge our Legislature to amend the Act to provide that health care providers have an affirmative duty to maintain adequate and accurate medical records and that a violation of that duty could support a prima facie medical malpractice claim.