HA4050D – Healthcare Law
Discussion 08.2: Missing Records
SCENARIO (BASED ON A REAL MASSACHUSETTS CASE)
You are selected to sit on the jury in a medical negligence case. The plaintiff is an infant who was
allegedly injured due to the negligence of hospital physicians and staff when he was born. During
discovery in the case, the patient and his attorney learned that the hospital had “lost” the patient’s
medical records for a critical 18-hour period in which the injury occurred. There was thus no
documentation of how the plaintiff was treated, which staff treated him, or what might have gone
(Note: If you would like to see the real case this scenario is based upon, check out Keene v. Brigham &
Women’s Hosp., Inc., 786 N.E.2d 824 (Mass. 2003). Be warned—the scenario has altered the facts from
the original case. Do not rely upon the real case opinion in formulating your answer to the fictional
scenario in the discussion question.)
1. As a member of the jury, would it surprise you that a hospital could lose a critical record like
this? What is the duty of the hospital to properly maintain the record?
2. As a juror trying to decide the facts of this case, how does it make you feel about the hospital
that this critical record which was vital to the plaintiff’s case was “lost?” How would it affect the
way you would judge the credibility of the hospital’s witnesses and other evidence?
3. What would you expect the judge might do in this situation to punish the defendant hospital?
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