Spoliation of evidence has long been remedied by the courts where the destruction of evidence by one party gives it an unfair advantage over other parties. The attention of the medical malpractice bar was drawn to this topic by the decision in Baglio v. St. John’s Queens Hospital.1 After the decision in Baglio, medical malpractice complaints appeared with separate causes of action for spoliation, before it was clear that any records were lost. This is despite the fact that the courts do not recognize spoliation as an independent tort. Metlife Auto & Home v. Joe Basil Chevrolet, Inc.2
The sheer magnitude of the potential damages in the Baglio case assured that it would not be ignored. The case involved the delivery of an infant by an attending obstetrician at the defendant hospital, and the treatment decisions appeared to have been made by the patient’s obstetrician. Once the hospital could not produce the critical fetal monitor tracings, however, the prospect of a defensible position in a case with multimillion-dollar exposure was replaced by the prospect of an inquest.
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