RUSSELLVILLE HOLDINGS, LLC, D/B/A SAINT MARY'S REGIONAL MEDICAL CENTER D/B/A TURNING POINT BEHAVIORAL HEALTH APPELLANT
JAMES ROBERTSON PETERS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JOHN D. PETERS, JR., DECEASED, AND ON BEHALF OF THE ESTATE AND ITS STATUTORY BENEFICIARIES; JOHN D. PETERS III; JAMES ROBERTSON PETERS, INDIVIDUALLY; AND KATHLEEN STINGLEY APPELLEES
FROM THE POPE COUNTY CIRCUIT COURT [NO. 58CV-15-160]
HONORABLE DENNIS CHARLES SUTTERFIELD, JUDGE
Munson, Rowlett, Moore and Boone, P.A., by: Beverly A.
Rowlett, Timothy L. Boone, and Mary Carole Young, for
Streett Law Firm, P.A., by: Alex G. Streett, James A.
Streett, and Robert M. Veach; and Brian G. Brooks, Attorney
at Law, PLLC, by: Brian G. Brooks, for appellees.
medical-malpractice case stems from the death of John D.
Peters, Jr. ("Mr. Peters"), who was admitted to
appellant Turning Point Behavioral Health ("Turning
Point"), a unit located at Saint Mary's Regional
Medical Center ("St. Mary's"), and upon his
release, hanged himself ten days later. Appellee James
Robertson Peters, as personal representative of the estate,
initiated suit. We affirm.
Facts and Procedural History
Peters was admitted to Turning Point following the death of
his wife of 37 years and two resulting suicide attempts. Mr.
Peters had long suffered from bipolar disorder with periods
of severe anxiety. His second suicide attempt occurred on
December 10, 2013, and resulted in an emergency-room visit to
St. Mary's. The inquiry and assessment form that was
filled out in the emergency room recognized that Mr.
Peters's son, John D. Peters III ("Jay"), was
Mr. Peters's legal guardian. Notably, both Mr. Peters and
Jay signed the consent for voluntary admission on December
10, 2013. On December 13, 2013, a social worker from Turning
Point filed a petition to involuntarily admit a person with
mental illness, which the Pope County Circuit Court granted
on December 16, 2013. Nothing in the petition acknowledged
that Mr. Peters had a legal guardian.
December 26, 2013, Mr. Peters was discharged from Turning
Point on his own recognizance. The discharge summary revealed
that Mr. Peters denied further suicidal ideations; he had
engaged in no self-destructive behavior since admission and
seemed ready for discharge; he was future oriented and had
interacted very positively with staff and peers; and it was
felt that he had reached maximal benefit of
hospitalization. On January 6, 2014, Mr. Peters hanged
days after the death of Mr. Peters, appellees' (Mr.
Peters's estate and heirs) attorney sent a seven-page
letter to appellant with the heading "Important Notice
Regarding Document and Data Preservation." This broad
letter gave appellant notice that the heirs and estate of Mr.
Peters had retained legal counsel to investigate a potential
claim, and appellant was notified "not to destroy,
conceal or alter any paper or electronic files . . . ."
At that time, medical records of discharged patients were
kept in two places: (1) copies of the paper portion of the
records were scanned to Laserfiche by a third-party vendor
and then shredded and (2) the electronic portion of the
medical records was maintained on a computer program known as
receipt of the letter, Tim Copeland, chief quality officer of
Russellville Holdings, LLC (another name for appellant) told
the director of the health-information-management department,
Paula Page, to sequester the paper portion of Mr.
Peters's records. Subsequently, Turning Point retained
legal counsel. Turning Point responded to the letter on
February 7, 2014, requesting a meet-and-confer conference to
discuss the breadth and scope of the document-preservation
letter. Turning Point sent a follow-up request on February
14, 2014, because counsel had not responded. A few days
later, the attorneys conducted a telephone conference, and
appellees' attorney sent a follow-up one-page letter
narrowing down the preservation request.
the same time, but before the telephone conference occurred,
Annette Smith replaced Paula Page as
health-information-management director. In an affidavit,
Smith explained that she had not been provided a copy of the
letter that the hospital received regarding document and data
preservation. She said at some point between late January but
before February 10, 2014, she discovered, in a drawer of a
desk previously used by Paula Page, Mr. Peters's paper
medical records. She explained, as in the ordinary course of
business, that she took the complete paper portion to EDCO
Health Information Solutions, the third-party vendor that
scans medical records into Laserfiche, to be scanned. Smith
received the paper medical records back once they had been
scanned. At some point between February 10, 2014, and
February 9, 2015, the paper portion of the records was
shredded in the usual and ordinary course of business; she
explained that this was not done maliciously or to destroy
evidence. From her point of view, "a superior copy of
the paper records existed on Laserfiche at the time the paper
portion was shredded."
eventually filed suit on May 6, 2015. Prior to, and during
the course of, litigation, four different sets of the medical
records were produced, for various reasons that were set out
in the affidavit by Smith. In February 2015, after the
contents of the medical records had changed four times,
counsel for appellees made a demand for a physical inspection
of Mr. Peters's original medical chart. Of particular
importance, appellees sought to document the actual content
of the original physical chart as it was on the day of Mr.
Peters's discharge and whether the original chart
contained guardianship orders that appellees claimed they had
provided to Turning Point, but Turning Point claimed the
contrary. It was then that the hospital and the appellees
discovered that the original paper medical chart had likely
been destroyed by Saint Mary's.
result, appellees filed a motion to compel their access to
Mr. Peters's original chart or, in the alternative, to
force Saint Mary's to admit on the record that they had
intentionally destroyed the original chart. In response,
appellant stated that it could not permit inspection of the
original chart because it had been destroyed. Appellees filed
a motion to strike appellant's answer, arguing that their
ability to obtain a full and fair trial had been
irretrievably compromised as a result of the evidentiary
destruction of the medical records. After a hearing on the
motion, the circuit court found that, after careful
consideration, the original medical file in question was so
important to the case that its preservation was essential to
a just adjudication. In its order, the court recognized that
striking an answer is very serious, but it found
appellant's conduct to be most egregious. Appellant filed
a motion to reconsider, but the circuit court denied
appellant's motion after a hearing. Appellant timely
appealed, and we have jurisdiction per Ark. R. App. P. - Civ.
2(a)(4), which states that an appeal may be taken from an
order that strikes an answer. In Arnold Fireworks
Display, Inc. v. Schmidt, 307 Ark. 316, 319, 820 S.W.2d
444, 445 (1991), the supreme court explained that the general
purpose of Ark. R. App. P. -Civ. 2(a)(1) (an appeal may be
taken from a final judgment or decree) is to prevent
piecemeal appeals while portions of the litigation remain
unresolved but that, quite differently, Ark. R. App. P. -Civ.
2(a)(4) allows a piecemeal approach.
appeal, appellant argues three points: (1) the court erred as
a matter of law in finding that spoliation of evidence
occurred; (2) the court erred as a matter of law in finding
that appellees' letters, sent long before any suit was
filed, unilaterally imposed a duty to preserve the paper copy
of the paper portion of the record; and (3) the court erred
in imposing the extraordinary sanction of striking the
Spoliation of Evidence
appeal from a circuit court's determination of a purely
legal issue, we must decide only if its interpretation of the
law was correct, as we give no deference to the circuit
court's conclusion on a question of law. Kraft v.
Limestone Partners, LLC, 2017 Ark.App. 315, at 5, 522
S.W.3d 150, 153. When a case is tried by a circuit court
sitting without a jury, the inquiry on appeal is whether the
circuit court's fact-findings are clearly erroneous, or
clearly against the preponderance of the evidence. Rial
v. Boykin, 95 Ark.App. 404, 408, 237 S.W.3d 489, 492
(2006). Recognition must be given to the circuit court's
superior opportunity to determine credibility of witnesses
and the weight to be given to their testimony. Id.
supreme court has defined "spoliation" as "the
intentional destruction of evidence and when it is
established, [the] fact finder may draw [an] inference that
[the] evidence destroyed was unfavorable to [the] party
responsible for its spoliation." Goff v. Harold Ives
Trucking Co., 342 Ark. 143, 146, 27 S.W.3d 387, 388
(2000). However, we must begin our analysis by acknowledging
that Arkansas case law on spoliation is sparse. For example,
this court has not previously addressed whether spoliation of
medical documents occurs when the documents are scanned and
converted to another format. The spoliation cases in Arkansas
involve tangible evidence, such as a halogen lamp and a
water-pipe clamp and bolt. See Bunn Builders, Inc. v.
Womack, 2011 Ark. 231; see also Rodgers v. CWR
Constr., Inc., 343 Ark. 126, 33 S.W.3d 506 (2000).
supreme court held that a circuit court is not required to
make a specific finding of bad faith on the part of the
spoliator. Bunn Builders, supra. Unlike the
case at hand, the plaintiffs in Bunn Builders sought
to implement jury instructions on spoliation rather than
striking the answer. Bunn Builders, 2011 Ark. 231,
at 2. Regardless, it serves as guidance in our analysis on
whether spoliation actually occurred. In Bunn
Builders, the circuit court found that the parties had a
duty and an agreement to preserve the evidence in the case
but that the motive behind the destruction of evidence was
unclear and granted that the jury be instructed on
spoliation. Id. The appellants appealed, arguing
that the circuit court erred in instructing the jury on
spoliation because there was no initial finding by the court
that the destruction was done in bad faith. Id. The
supreme court explained that Arkansas courts have never
specifically held that a circuit court must find intentional
destruction indicating a desire to suppress the truth before
a spoliation instruction can be given. Id. at 10.
Therefore, the supreme court concluded that a finding of bad
faith on behalf of the spoliator is not necessary.
Id. at 11.
court in Bunn Builders relied on Rodgers
for guidance. Rodgers was injured in a construction-site
accident when a section of water pipe that was suspended from
the ceiling fell and struck him as he was pulling feeder
wires out of an electrical panel in the basement of the
Pulaski County Courthouse. Rodgers, supra.
The parties stipulated that the appellee, the contractor, had
lost the clamp and bolt that held the water pipe to the
ceiling before the accident occurred, and the appellants
requested a spoliation instruction. Rodgers, 343
Ark. at 129, 33 S.W.3d at 508. The circuit court rejected a
non-AMI jury instruction propounded by the appellants, noting
that the clamp and bolt were available at the time the
appellants' lawsuit was initiated and that the appellants
had presented no proof that the contractor willfully lost or
intentionally destroyed the evidence. Id.
appeal in Rodgers, the appellants argued that the
record reflected that the contractor had been in physical
possession and control of the pipe, clamp, and bolt involved
in the accident. Rodgers, 343 Ark. at 130, 33 S.W.3d
at 510-11. The supreme court affirmed the circuit court's
decision to reject appellants' spoliation instructions
because (1) the circuit court specifically found that the
evidence had not been intentionally lost or destroyed; (2)
the circuit court had permitted counsel to argue the same
points even though the instructions were not submitted to the
jury; and (3) the evidence was available shortly after the
accident, but no meaningful discovery was commenced until
five years following the accident. Id. The supreme
court held that "[i]n absence of any intentional
misconduct, we cannot say that the circuit court abused its
discretion by failing to give the jury an instruction on