Medical Malpractice Case of the Month
September 2001

A Massachusetts trial court has refused to reconsider a default judgment which was entered against a hospital in a medical malpractice action as a sanction for a hospital’s failure to preserve medical records of the patient’s treatment. In Keene v. Brigham & Women’s Hospital, Inc., No. 95-1081 (Norfolk County Super. Ct, Mass. Sept. 30, 1997), 19 Medical Liability Reporter 225 (October 1997), a hospital that was sued for negligent treatment of a newborn infant was unable to produce medical records relating to the child’s treatment immediately following delivery. The court entered a default judgment against the hospital as a sanction for failing to comply with its duty to maintain the medical records, finding that the plaintiff’s inability to obtain the records would prevent him from pursuing his malpractice claim. The hospital recently moved for reconsideration of the default judgment to the extent that it precluded litigation of the issue of causation. The hospital conceded that it could not contest the issues of duty and breach of duty, but argued that the default judgment did not establish causation. The court has now rejected the hospital’s motion, ruling (a) that the default judgment conclusively established each of the elements of the plaintiff’s negligence claim, including causation; and (b) that even if causation was not established by the prior default judgment, the court would bar the hospital from raising a causation defense under principles of fairness and equity because the loss of the crucial medical records was highly prejudicial to the plaintiff’s case. — Keene v. Brigham & Women ‘s Hospital, Inc., No. 95-108 1 (Norfolk County Super. Ct., Mass. April 30, 19990.

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