Suit Allowed for Withholding X-rays
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In a landmark decision, the North Carolina Court of Appeals has ruled that a hospital may be sued for obstruction of justice if it fails to produce x-rays requested by the patient.
In September, 2000, Tommy J. Grant went to the emergency room of High Point Regional Hospital complaining of excruciating knee pain. The hospital took x-rays of Mr. Grant's knee but did not make a diagnosis of cancer or refer him to a specialist to examine his knee to check for cancer.
Mr. Grant died of cancer of the knee in February, 2003. By the time the cancer was diagnosed, it had advanced to the stage that it was incurable and was terminal.
Six months after Mr. Grant's death, the executrix of his estate consulted a lawyer concerning whether the estate had a malpractice claim against the hospital.
The attorney requested x-rays by way of a letter to the hospital. When the attorney received no response from the hospital, he telephoned the hospital and was told the x-rays were "present" at the hospital. The attorney made numerous written requests for the x-rays. Eight days later, however, the same hospital employee told the attorney that the x-rays could not be found.
The attorney then subpoenaed the x-rays from the hospital but the hospital responded by saying that the x-rays were "not in [the descendant's] folder" and "had not been checked out."
The failure of the hospital to deliver the dead man's x-rays to the family is especially significant in North Carolina. North Carolina requires that, before a malpractice case is filed, the attorney for the claimant must certify to the court that the case has been examined by an expert with similar qualifications as the defendant and that the expert has rendered an opinion that the defendant is negligent. Further, the certification must state that the examining doctor is willing to testify against the defendant. In Mr. Grant's case, no such expert could be obtained because it was necessary for an expert to examine the x-rays to help determine whether the hospital was careless.
Mr. Grant's family then sued the hospital based upon a rarely used common law claim of obstruction of justice. The family alleged that the defendant hospital was guilty of obstruction of justice because it either destroyed or failed to maintain Mr. Grant's records and x-rays and that, as a result of this failure, the family was prevented from prosecuting a medical malpractice claim against the hospital and others.
The trial court dismissed the family's lawsuit. However, upon appeal, the North Carolina Court of Appeals ruled that the acts alleged by the hospital, if true, would be acts which obstruct, impede, or hinder public or legal justice and would amount to the common law offense of obstructing justice.
The Court of Appeals held that there was no requirement that a lawsuit be pending in order for the claimant to have a valid claim for obstruction of justice.
The decision of the North Carolina Court of Appeals was unanimous. Therefore, there is no automatic right for the hospital to appeal to the North Carolina Supreme Court. However, the hospital has indicated that it intends to ask the Supreme Court, in its discretion, to hear its case.
Legal observers note that this is a case of great significance for medical malpractice claimants.
It is not uncommon for doctors and hospitals to claim that vital medical records have been lost. These missing medical records are many times necessary in order to establish a claim of negligence. By withholding these vital records, hospitals and doctors are sometimes able to avoid responsibility for their negligence.
This recent Court of Appeals case, Grant v. High Point Regional Health System, will go a long way towards eliminating this "hide the ball" defense many times used by potential medical malpractice defendants.