EMAIL TO A FRIEND COMMENT

 

Fetal Heart Tracing Not Official Medical Record Necessitating Preservation


A woman checked into to the hospital to give birth. In the delivery room, fetal monitoring indicated that the infant was experiencing sustained periods of bradycardia, a slow heart rate. As a result, an emergency page was issued. A certified nurse midwife arrived in the delivery room in response to the page. The woman gave birth to a boy. The infant suffered from severe, permanent neurological injuries, including spastic quadriplegia, blindness, and an inability to speak.

 

The hospital triggered its Sentinel Events/Medical Errors/Disclosures policies and procedures (“Sentinel Events Policies”) immediately after the infant’s birth. Pursuant to those policies, it began an internal investigation and then notified its insurance carrier and contacted counsel a short time later.

 

At the time the infant was delivered, the official medical records at the hospital were maintained in electronic form. Although the fetal monitor strips were not considered part of the official record, the nurses often took notes on the strips during the labor and delivery and would then refer back to the strips to complete the official record. The hospital maintained the strips for 30 days after a delivery, and then they were routinely destroyed. The strips from the infant’s birth were destroyed pursuant to this procedure. At the time the paper tracings were destroyed, the hospital had not received any letters, calls, pleadings, or inquiries of any nature from the infant and his mother that might have alerted the hospital that they were contemplating litigation.

 

The infant and his mother sued the certified nurse midwife, OB/GYN, their practice groups, and the hospital. The complaint alleged that, due to their negligence, the infant suffered oxygen deprivation shortly before birth, which resulted in severe, permanent neurological injuries, including spastic quadriplegia, blindness, and an inability to speak.

 

The case proceeded to trial. The infant and his mother requested that the following charge be given to the jury: “[The hospital] destroyed the printed paper copy of the fetal heart rate tracing sometime after the delivery of [the infant]. At the time [the hospital] destroyed the printer paper copy of the fetal heart rate tracing, [it] was aware of the potential for litigation. The Plaintiffs are entitled to a presumption that the printed paper copy of the fetal heart rate tracing, which contained the handwritten notes that [a nurse] made during the labor at issue in this case, would have been prejudicial to [the hospital]. The presumption may be rebutted by [the hospital].” In support of the requested charge, the infant and mother argued that once the Sentinel Events Policies were triggered, the hospital was required to obtain and/or preserve evidence, as appropriate (for example, photographs, equipment, supplies, etc.) and to protect the medical record and other potential evidence as needed in anticipation of possible litigation. They presented evidence that risk management would sometimes request that the fetal monitor strips be preserved, although they were not requested here.

 

The trial court declined to give the charge, finding that the hospital had no knowledge or notice of potential litigation. However, the trial court allowed the parties to present evidence and argument concerning the notes made on the fetal monitor paper strip, the use of the strip in creating the official medical record, and the destruction of the strip.

 

The jury deliberated for one and a half days. The jury returned a verdict for the certified nurse midwife, OB/GYN, their practice groups, and the hospital.

 

Several weeks after the jury returned its verdict, two jurors contacted the infant and mother’s counsel to express concerns about possible juror misconduct. During that conversation, the infant and mother's counsel learned for the first time that the trial judge had responded to a note from the jury without ever disclosing the contents of the note or his response to either the parties or their counsel. Thereafter, the infant and mother's counsel obtained affidavits from the two jurors, both of whom averred that, on the second day of deliberations, the jury sent a note to the trial judge indicating that they were not able to reach a unanimous verdict. According to the jurors, the judge sent a note back, which instructed the jury to continue deliberating.

 

The infant and mother's counsel sent a letter to the trial judge requesting that he take steps to see that both the jurors' note and his responsive note were filed with the Clerk. After realizing that the court reporter did not have the note, the trial judge, without seeking input from counsel or holding a hearing, entered an order supplementing the record pursuant to OCGA § 5–6–41(d). The order recited that four notes were delivered to the court while the jury was deliberating, that three of the notes were preserved and made a part of the record, but that the note pertaining to the jury's inability to reach a unanimous verdict was not one of them. The order found that the note read “What happens if we can't reach a unanimous verdict,” and was delivered to the court immediately after lunch recess on the first day the jury deliberated. The trial judge further recited that due to the fact that the note did not actually indicate that the jury was “hung” and in view of the short amount of time the jury had been deliberating after such a lengthy trial, he did not believe consultation with counsel about his response to the note was necessary, and therefore wrote on the same piece of paper “please continue deliberating” and had the bailiff return the note to the jury. The trial judge also stated the note had remained with the jury, and presumably was destroyed along with the jurors' personal notes as instructed by the bailiff after the verdict was returned.

 

The infant and mother subsequently filed a motion to recuse or disqualify the trial judge due to the perceived conflict between his order supplementing the record and the jurors' affidavits. The trial judge granted the motion to recuse, and the case was re-assigned. Following a hearing on the infant and mother's motion for new trial, the assigned judge rejected their claim that the trial court's communication with the jury was per se reversible error, and concluded that the infant and mother were not entitled to a new trial because the note was not impermissibly misleading or coercive.

 

The Court of Appeals of Georgia reversed. The court held that harm would be presumed from the trial court's communication with the jury, with neither parties nor their attorneys present, instructing the jury to continue deliberating after the jury sent a note either indicating it was unable to reach a unanimous verdict or asking what would happen if it was unable to reach a unanimous verdict. The court also held the hospital did not have notice, when it destroyed a paper copy of a fetal heart tracing after a child's birth pursuant to routine procedures, of pending or contemplated litigation, as necessary to support the requested instruction on spoliation of evidence.

 

Harm would be presumed from the trial court's communication with the jury, with neither parties nor their attorneys present, instructing the jury to continue deliberating after the jury sent a note either indicating it was unable to reach a unanimous verdict or asking what happened if it was unable to reach a unanimous verdict. As a general proposition, a trial judge should not answer a question from the jury in a civil case about their ability to reach a verdict unless the parties and/or their counsel are present as well. Denial of a fundamental and constitutional right such as the right to be present, in person or by counsel, is one of the rare circumstances where prejudice may be presumed, under the exception to the requirement of showing manifest harm under the codification of the harmless-error rule as applied in civil cases. The court noted that the communication was not disclosed to the infant and mother or their counsel until after the verdict, the jury's note and judge's note in response were not made part of record, and there were differing recollections about the nature and timing of the communication, and those differences were never resolved by the subsequently appointed judge who decided motion for new trial. Given those circumstances, the court reasoned that the infant and mother were effectively precluded from demonstrating harm. The court determined that it could not be said that a verdict would have been demanded for the certified nurse midwife, OB/GYN, their practice groups, and the hospital regardless of the effect of the communication on the jury.

 

The hospital did not have notice, when it destroyed paper copy of a fetal heart tracing containing a nurse's handwritten notes 30 days after the infant's birth pursuant to routine procedures, of pending or contemplated litigation, as necessary to support an instruction on spoliation of evidence. The court held that the simple fact that someone was injured, without more, was not notice that the injured party was contemplating litigation sufficient to automatically trigger the rules of spoliation so as to give rise to a duty to preserve evidence. Notice of potential liability was not the same as notice of potential litigation. The court reasoned that the hospital’s launch of an internal investigation and taking certain steps pursuant to hospital policies did not, without more, equate to notice that litigation was contemplated or pending. While the hospital immediately after the infant's birth triggered its sentinel events policies by beginning an internal investigation, notifying its insurance carrier, and contacting counsel, those actions showed only that it contemplated potential liability. Even though the sentinel events policy required preservation of official medical records, the paper copy of the heart tracing did not qualify as an official record.

 

The Court of Appeals of Georgia reversed the trial court’s entry of a judgment upon a jury verdict in favor of the certified nurse midwife, OB/GYN, their practice groups, and the hospital, and remanded for a new trial.

 

See: Phillips ex rel. Hector v. Harmon, 2014 WL 3409215 (Ga.App., July 15, 2014) (not designated for publication).

 

See also Medical Law Perspectives, November 2012 Report: Liability for Electronic and Other Medical Record Information Disclosure

 

 

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