Commercial Litigation and Arbitration

Obstruction as a Cause of Action for Spoliation

Negligent failure to diagnose cancer was the original tort but it was not the basis for suit in Grant v. High Point Regional Health Sys., 2007 N.C. App. LEXIS 1331 (N.C. App. June 19, 2007). Three years after the treatment, plaintiff’s counsel notified the hospital by letter of the potential malpractice claim and requested records and x-rays (enclosing an executed authorization form). When the hospital did not respond, plaintiff’s counsel called the hospital and was told that the x-rays ‛were present“ but that another medical authorization form. Four months later, the hospital (in response to a pretrial subpoena) advised that it could not locate the x-rays. The plaintiff then commenced a tort claim for spoliation and obstruction of justice arising out of the loss of the x-rays. The North Carolina Court of Appeals dismissed the spoliation claim. It held that spoliation does not give rise to an independent cause of action; it just permits an adverse inference if the spoliation is intentional (under North Carolina law). The Grant Court, however, upheld the tort claim for obstruction of justice., relying on a North Carolina Supreme Court decision recognizing a civil conspiracy claim for obstruction arising out of the creation of misleading entries, and obliteration of an authentic entry, in medical records. Grant highlights that, even in jurisdictions that have not recognized an independent tort claim for spoliation, a claim may exist under other legal precepts such as obstruction and/or civil conspiracy.

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