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Spoliation in a Medical Malpractice Case

By Kim M. Ruder
January 29, 2009

By definition, spoliation refers to the “destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Bouve & Mohr, LLC v. Banks, 274 Ga. App. 758, 762 (2005). Spoliation in the context of a medical malpractice case can raise many issues for lawyers representing doctors and hospitals. These issues can often be overlooked until it is too late to repair the damage done.

While most attorneys have heard of the concept of spoliation and have a general or basic understanding of what it means, few appear to have had the opportunity or necessity of litigating the issue before a trial court or on appeal. Due to its less-than-pervasive appearance in litigation ' and more particularly in medical malpractice actions ' the subject needs some light thrown upon it. This article shows how medical malpractice attorneys need to “think outside the box” in their defense of their medical practitioner clients.

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