                                                                              FILED
                                                                        Dec 21 2017, 11:25 am

                                                                              CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Thomas D. Blackburn                                       Mark W. Baeverstad
David A. Singleton                                        Ashley M. Gilbert-Johnson
Blackburn & Green                                         Rothberg Logan & Warsco LLP
Fort Wayne, Indiana                                       Fort Wayne, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Mary (Jones) Shirey,                                      December 21, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          02A03-1704-MI-876
        v.                                                Appeal from the Allen Superior
                                                          Court
Rex Flenar, M.D.,                                         The Honorable Craig J. Bobay,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          02D02-1608-MI-000837



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017                      Page 1 of 24
                                           Case Summary
[1]   After Mary Shirey was injured in a car accident, she sought treatment from Dr.

      Rex Flenar. A few weeks later, Shirey’s lawyer asked Dr. Flenar for her

      medical records. Dr. Flenar failed to respond for several years before

      eventually indicating that the records were destroyed by his medical-records

      software provider. Shirey has sued Dr. Flenar, claiming that she has a private

      right of action under Indiana Code section 16-39-1-1, which requires a

      healthcare provider to supply a patient’s medical records upon request by the

      patient. She also asserts that, to the extent Dr. Flenar lost or destroyed the

      records, she has a claim for third-party spoliation of evidence, because without

      the records she was unable to fully substantiate her personal-injury claim

      stemming from the accident. The trial court granted Dr. Flenar summary

      judgment on both claims, and Shirey appeals. She has failed to persuade us

      that our General Assembly intended to create a private cause of action for a

      violation of Section 16-39-1-1. However, we conclude that Dr. Flenar had a

      duty to preserve the records under the circumstances of this case and is

      therefore properly subject to a cause of action for spoliation. As such, we affirm

      in part, reverse in part, and remand this matter to the trial court for further

      proceedings.



                             Facts and Procedural History
[2]   Shirey filed her complaint against Dr. Flenar in August 2016. She alleged that

      she began treating as a patient of Dr. Flenar on March 24, 2013; that she was

      Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 2 of 24
      injured in a car accident less than a week later, on March 30, “due to the

      negligence of a third party”; and that she “sought treatment thereafter” from

      Dr. Flenar. Appellant’s App. Vol. II p. 14. She further claimed that she, “by

      counsel,” requested her medical records and bills from Dr. Flenar on April 25,

      2013; that she did not receive a response from Dr. Flenar; and that she and her

      lawyer made multiple follow-up requests over the next three years (the last on

      March 11, 2016), none of which Dr. Flenar responded to. Id. at 14-15.


[3]   Shirey included two counts in her complaint. In Count I, she alleged that Dr.

      Flenar violated Section 16-39-1-1 (which we also call the “record-production

      statute”), which provides, in subsection (c), “On written request and reasonable

      notice, a provider shall supply to a patient the health records possessed by the

      provider concerning the patient.” In Count II, she alleged in the alternative that

      Dr. Flenar “may no longer be in possession of the medical records because he

      lost or destroyed them.” Id. at 16. She claimed, generally, that she “suffered

      injury by being refused access and use of her medical records and bills” and,

      more specifically, that she “suffered damages by being rendered incapable of

      completely documenting her injury claim for damages from her March 30, 2013

      accident due to the lack of complete medical evidence[.]” Id. at 15.


[4]   Dr. Flenar filed a motion for summary judgment in which he claimed that his

      medical-records software provider destroyed Shirey’s records without his

      knowledge:


              In 2013, Dr. Flenar was practicing medicine as Kendallville
              Family Care Center, Inc., which was his private practice. Dr.

      Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 3 of 24
        Flenar maintained electronic medical records with regard to each
        patient. In order to maintain these medical records, Dr. Flenar
        utilized an electronic medical records software program called
        “MyWay,” which was developed by AllScripts. MyWay EMR
        software included the patient’s history, clinical charting,
        ePrescribing, lab orders and results, and all other records that
        would have been contained in a patient’s chart. In early 2014,
        Dr. Flenar was informed by AllScripts that it would no longer
        support the MyWay software and that he would need to
        purchase a new EMR software program from AllScripts. Since
        he had encountered very poor service from AllScripts with the
        MyWay software, he decided to use a different EMR software
        called Practice Fusion. MyWay was incompatible with the new
        software so he began using two different EMR’s, Practice Fusion
        for creating and maintaining an EMR going forward, and
        MyWay to access old pat[i]ent records. Dr. Flenar joined a class
        action lawsuit against AllScripts for its decision to no longer
        support MyWay. He was notified in April or May of 2015 that
        the class action was settled and that he could continue to access
        the MyWay records for another year if he agreed to pay $1,000.
        Dr. Flenar signed up for that option but was never billed and in
        June, 2015, he was cut off from his access to his patient’s records
        in MyWay. In July, 2015, Dr. Flenar closed his practice in
        Kendallville. After getting cut off from his access to the MyWay
        records, Dr. Flenar called AllScripts, but received no
        [cooperation]. He found an email address on the internet that
        was supposed to be used if he needed to contact AllScripts to
        obtain [] copies of his patient’s records, but that did not work
        either. After multiple unsuccessful attempts to obtain Dr.
        Flenar’s patients’ medical records, he was informed that
        AllScripts destroyed all of his patients’ records and that he will
        not be able to obtain a copy of Ms. Shirey’s office chart. Dr.
        Flenar does not recall receiving any notice that AllScripts would
        destroy his patients’ medical records.




Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 4 of 24
      Id. at 27-28 (citations omitted). Dr. Flenar did not explain why he failed to

      provide Shirey’s records between April 2013 and June 2015, when he

      apparently still had access to them. Moreover, as the legal basis for his motion,

      Dr. Flenar did not disclaim responsibility for the loss of the records. Instead, he

      asserted that Shirey’s lawsuit is one for medical malpractice and that Shirey was

      therefore required to present her claims to a medical review panel before taking

      them to court, pursuant to the Indiana Medical Malpractice Act. See Ind. Code

      § 34-18-8-4. The only evidence Dr. Flenar designated in support of his motion

      was Shirey’s complaint and his own affidavit explaining what happened with

      Shirey’s records.


[5]   In her response to Dr. Flenar’s motion, Shirey argued that her suit is not

      governed by the Medical Malpractice Act “because she has not alleged any

      bodily injury arising out of malpractice and the substance of her claim is not

      within the scope of the Act.” Appellant’s App. Vol. II p. 50. She asserted that

      she has a private right of action for Dr. Flenar’s violation of the record-

      production statute as well as a claim for third-party spoliation of evidence in

      that Dr. Flenar’s actions “directly caused her to suffer damages through

      incomplete evidence in her principal claim.” Id. at 59. Shirey did not designate

      any evidence other than the “pleadings that have been filed in this cause and are

      on file with the Court.” Id. at 60.


[6]   In reply, Dr. Flenar abandoned his medical-malpractice theory and addressed

      the record-production statute and the issue of spoliation for the first time. He

      argued that Section 16-39-1-1 does not confer a private right of action.

      Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 5 of 24
      Regarding spoliation, he maintained that “public policy weighs against

      recognizing a third-party spoliation claim in this matter” because “any alleged

      damages would be highly speculative” and Shirey “has not alleged bad faith by

      Dr. Flenar or alleged that he affirmatively acted to destroy evidence to avoid or

      lessen his liability.” Id. at 66. Dr. Flenar did not designate any additional

      evidence with his reply.


[7]   After a short hearing, the trial court issued an order granting Dr. Flenar’s

      motion, largely incorporating his legal arguments on both issues.


[8]   Shirey now appeals.



                                 Discussion and Decision
[9]   Shirey contends that the trial court should not have granted Dr. Flenar

      summary judgment on either the statutory claim or the spoliation claim.

      “When reviewing summary judgment, we apply the same standard as the trial

      court: summary judgment is proper only when the designated evidence shows

      no genuine issue of material fact and the moving party is entitled to judgment as

      a matter of law.” Megenity v. Dunn, 68 N.E.3d 1080, 1083 (Ind. 2017) (citing

      Ind. Trial Rule 56(C)). “Indiana consciously errs on the side of letting marginal

      cases proceed to trial on the merits, rather than risk short-circuiting meritorious

      claims.” Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014).




      Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 6 of 24
                                    I. Private Right of Action
[10]   Shirey first argues that she has a private right of action under the first sentence

       of Indiana Code section 16-39-1-1(c): “On written request and reasonable

       notice, a provider shall supply to a patient the health records possessed by the

       provider concerning the patient.” Whether a statute confers a private right of

       action is a question of law that we review de novo. Doe #1 v. Ind. Dep’t of Child

       Servs., 81 N.E.3d 199, 201 (Ind. 2017).


[11]   As Shirey acknowledges, our General Assembly has not expressly created a

       private right of action for violations of the record-production statute. Therefore,

       we must examine the language of the statute to determine whether the

       legislature nonetheless intended to allow private actions. See id. at 202

       (explaining that whether a private cause of action exists is “purely a question of

       legislative intent”). For three reasons, we do not find such an intent.


[12]   First, from the outset, we must be reluctant to find an implied right of action.

       Id. Our General Assembly “often creates rights of action using clear language,”

       so its omission of such language is evidence that it did not intend to create a

       private remedy. See id. (citing numerous statutes that expressly establish rights

       of action).


[13]   Second, Title 16 includes its own enforcement mechanism. Specifically,

       Indiana Code section 16-19-3-18(b) provides that the Indiana State Department

       of Health “may bring an action to enforce this title[.]” We have held that this is

       “[t]he enforcement mechanism of [Title 16][.]” HealthPort Techs., LLC v.

       Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 7 of 24
       Garrison Law Firm, LLC, 51 N.E.3d 1236, 1239 (Ind. Ct. App. 2016), trans.

       denied. According to our Supreme Court, “When a statute expressly provides

       one enforcement mechanism, courts may not engraft another.” Doe #1, 81

       N.E.3d at 204.


[14]   And third, a holding that the record-production statute confers a private right of

       action would be seriously at odds with our Supreme Court’s interpretation of

       the closely related record-retention statute, Indiana Code section 16-39-7-1. In

       Howard Regional Health System v. Gordon, 952 N.E.2d 182 (Ind. 2011), the Court

       held that no private right of action exists under that statute, which provides, in

       subsection (b), “A provider shall maintain the original health records or

       microfilms of the records for at least seven (7) years.” Shirey offers no reason,

       and we can think of none, why the legislature would create a right of action

       against a health care provider who fails to produce records but not against a

       provider who fails to maintain records in the first place.


[15]   Notwithstanding all that, Shirey emphasizes the following passage from our

       Supreme Court’s decision in LTV Steel Co. v. Griffin: “As a general rule, a

       private party may not enforce rights under a statute designed to protect the

       public in general and containing a comprehensive enforcement mechanism.”

       730 N.E.2d 1251, 1260 (Ind. 2000). Focusing on the word “and,” Shirey reads

       this language to mean that if the statute at issue (1) was not designed to benefit

       the public in general, but rather specific individuals, or (2) does not include a

       comprehensive enforcement mechanism, a private right of action is permitted.

       Shirey contends that Section 16-39-1-1(c)—with its references to “a provider,”
       Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 8 of 24
       “a patient,” and “the patient”—was designed to benefit individual patients

       more so than the public at large and that this fact alone means that she has a

       private right of action, notwithstanding the existence of a statutory enforcement

       mechanism.1


[16]   However, in more recent opinions, the Supreme Court has made clear that the

       passage from LTV Steel should not be read literally. In Blanck v. Indiana

       Department of Correction, the Court held that various prison-discipline statutes do

       not confer a private right of action even though they appeared to be designed

       primarily to benefit inmates. 829 N.E.2d 505, 509-11 (Ind. 2005). In Gordon,

       the Court did not even address whether the medical-record-retention statute

       was designed to benefit individual patients before concluding that it does not

       confer a private right of action. 952 N.E.2d at 186-88. And as already

       discussed, the Court said in Doe #1 that “[w]hen a statute expressly provides

       one enforcement mechanism, courts may not engraft another”—apparently

       without regard to whether the statute was designed to benefit particular

       individuals. 81 N.E.2d at 204. Therefore, the fact that Indiana Code section




       1
         Shirey asserts that Section 16-39-1-1 “is specifically titled, ‘Right of Access, written requests; effective
       duration,’” Appellant’s Reply Br. p. 8 (emphasis in original), and that this “title” signals not only a right of
       access to medical records but the existence of a private cause of action to enforce that right of access. Shirey
       does not tell us what version of the Indiana Code she is referencing, but the legislature did not include this
       purported title in the public law that created Section 16-39-1-1, see P.L. 2-1993, § 22, or in any of the public
       laws that have amended the statute, see P.L. 40-1994, § 66; P.L. 102-1994, § 1; P.L. 2-1995, § 72; P.L. 108-
       1996, § 4; P.L. 157-2006, § 4. The heading appears to have been added by publishers after the legislature
       enacted the statutes. In any event, the legislature has declared that any headings it includes in a law “are not
       part of the law,” “are intended for organizational purposes only,” and “are not intended to affect the
       meaning, application or construction of the statute they precede.” Ind. Code § 1-1-1-5(f).

       Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017                         Page 9 of 24
       16-39-1-1 was arguably designed to benefit individual patients does not alter our

       conclusion that the legislature did not intend to create a private right of action.

       We affirm the trial court’s grant of summary judgment in favor of Dr. Flenar on

       that issue.


                                               II. Spoliation
[17]   Shirey argues that even if she does not have a private right of action under

       Section 16-39-1-1, she has a valid common-law claim for spoliation of evidence.

       The latter claim is not simply a reframing of the former. While both claims

       ultimately arise from Dr. Flenar’s failure to provide Shirey’s medical records,

       they are distinguishable because the spoliation claim does not depend on a

       violation of the record-production statute (or, for that matter, the record-

       retention statute, Indiana Code section 16-39-7-1). Rather, it is an allegation

       that Dr. Flenar lost or destroyed evidence that he knew or should have known

       was relevant to Shirey’s personal-injury claim relating to the car accident.


[18]   Our Supreme Court held in Gribben v. Wal-Mart Stores, Inc. that Indiana law

       does not recognize a claim for “first-party” spoliation—the loss or destruction

       of evidence by a party to the principal litigation. 824 N.E.2d 349 (Ind. 2005).

       In that case, a person who sued a store after a fall wanted to add a claim that

       the store failed to preserve surveillance video. The Court explained that a

       variety of spoliation remedies are available to a party to litigation, such as

       “potent” discovery sanctions and an inference that the spoliated evidence was

       unfavorable to the party responsible. However, recognizing that such sanctions


       Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 10 of 24
       are generally unavailable against a spoliator who is not a party to the

       underlying dispute, the Court explicitly left the door open to claims of “third-

       party” spoliation—the type of claim Shirey makes here. Specifically, the Court

       said: “It may well be that the fairness and integrity of outcome and the

       deterrence of evidence destruction may require an additional tort remedy when

       evidence is destroyed or impaired by persons that are not parties to litigation

       and thus not subject to existing remedies and deterrence.” Id. at 355.


[19]   This Court has not recognized any third-party spoliation claims since Gribben.

       However, we did allow one such claim seven years before Gribben. In Thompson

       ex rel. Thompson v. Owensby, 704 N.E.2d 134 (Ind. Ct. App. 1998), trans. denied, a

       young girl was mauled by a dog that broke free of a cable. The girl’s parents

       sought compensation from the dog owners’ landlords, prompting the landlords’

       liability insurer to conduct an investigation and to take possession of the cable.

       The insurer, however, lost the cable before it had been examined or tested. The

       parents then sued the insurer for negligent spoliation of evidence, alleging that

       the loss of the cable adversely affected their personal-injury action. The insurer

       filed a motion to dismiss, which the trial court granted. In reversing, we framed

       the issue as whether the insurance company had a duty to preserve the cable.

       To answer that question, we balanced the three duty factors identified by our

       Supreme Court in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991): (1) the

       relationship between the parties, (2) the reasonable foreseeability of harm to the

       person injured, and (3) public-policy concerns. We have applied the same

       analysis in more recent spoliation cases. See Lyons v. Richmond Cmty. Sch. Corp.,


       Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 11 of 24
       990 N.E.2d 470 (Ind. Ct. App. 2013), aff’d on reh’g, 996 N.E.2d 1280 (Ind. Ct.

       App. 2013), summ. aff’d in relevant part, 19 N.E.3d 254 (Ind. 2014); Am. Nat’l

       Prop. & Cas. Co. v. Wilmoth, 893 N.E.2d 1068 (Ind. Ct. App. 2008), trans. denied.


[20]   Balancing the Webb factors in this case, we hold that the trial court erred by

       concluding that Dr. Flenar did not have a duty to preserve Shirey’s medical

       records.2


                                                 A. Relationship
[21]   Regarding the first factor, Dr. Flenar’s attorney conceded at oral argument that

       Dr. Flenar had an important relationship with Shirey. According to Shirey’s

       complaint, she became a patient of Dr. Flenar on March 24, 2013, and she

       sought treatment from him after the car accident a week later. Dr. Flenar had a

       vital relationship with Shirey not only because he was responsible for her care

       but also as the presumptive safekeeper of the records generated in relation to

       that care. See Gordon, 952 N.E.2d at 186 (explaining that maintenance of health

       records is “closely entwined with health care” and “a part of what patients

       expect from health care providers”).




       2
         Notably, Shirey does not argue that Indiana Code section 16-39-7-1, the record-retention statute we
       addressed earlier, establishes the duty required for a spoliation claim, even though it specifically requires
       providers to maintain records for seven years. In Glotzbach v. Froman, our Supreme Court hinted that such a
       statute might be sufficient to create a duty to preserve. 854 N.E.2d 337, 340 (Ind. 2006) (discussing Bondu v.
       Gurvich, 473 So. 2d 1307 (Fla. Ct. App. 1984)). As discussed above, however, the Court has more recently
       held in Gordon that a violation of the record-retention statute cannot be the basis for a private cause of action.
       952 N.E.2d at 187. Presumably, Shirey is concerned that basing a spoliation claim on the record-retention
       statute would seem like an attempt to skirt that holding.

       Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017                         Page 12 of 24
                                             B. Foreseeability
[22]   As for the second factor, the harm alleged by Shirey was reasonably foreseeable

       by Dr. Flenar. Recently, our Supreme Court adopted this Court’s holding that

       the foreseeability component of the duty inquiry requires a “general analysis of

       the broad type of plaintiff and harm involved, without regard to the facts of the

       actual occurrence.” Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384,

       390 (Ind. 2016) (quoting Goldsberry v. Grubbs, 672 N.E.2d 475, 479 (Ind. Ct.

       App. 1996), trans. denied)). In Goodwin, three people who were shot inside a bar

       by another customer sued the bar for failing to provide adequate security. In

       deciding the scope of the bar’s duty to the victims, the Court framed the

       foreseeability question as whether “bar owners routinely contemplate that one

       bar patron might suddenly shoot another.” Id. at 394. The Court held that they

       do not. Id.


[23]   Here, we see the issue, generally stated, as whether it is reasonably foreseeable

       to a healthcare provider that a patient who requests her medical records will

       suffer harm if she does not receive them. We conclude that it most definitely is.

       A patient’s request for records puts a healthcare provider on notice that the

       patient needs the records for some reason—perhaps current or future medical

       care, employment, life insurance, or, as here, legal—which in turn puts the

       provider on notice that the patient could be worse off without them. See

       generally Glotzbach v. Froman, 854 N.E.2d 337, 340 (Ind. 2006) (observing that

       “an explicit written request from the employee’s attorney to preserve the

       evidence” supports recognition of a spoliation claim).

       Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 13 of 24
[24]   Dr. Flenar points out that Shirey, in responding to the motion for summary

       judgment, did not designate any evidence that supports her allegation that she

       requested her records from Dr. Flenar. He asserts that a plaintiff opposing such

       a motion “may not rest upon his pleadings but must set forth specific facts, by

       affidavit or otherwise, which demonstrates that there is a genuine issue for

       trial.” Appellee’s Br. p. 8. But a plaintiff’s burden to designate specific

       evidence is triggered only after the defendant designates his own evidence to

       negate the allegations in question. See, e.g., McDonald v. Lattire, 844 N.E.2d 206,

       210 (Ind. Ct. App. 2006). Here, Dr. Flenar failed to do so. The only evidence

       he designated was his affidavit explaining how he eventually lost Shirey’s

       records. In that affidavit, Dr. Flenar did not deny Shirey’s claim that her

       attorney requested her records a few weeks after the accident. Because Dr.

       Flenar did not designate any evidence to negate this allegation, we must accept

       it as true. See id. at 212. And because Dr. Flenar was aware that Shirey wanted

       her medical records, he had good reason to believe that she would be harmed if

       she did not receive them.


                                              C. Public Policy
[25]   Dr. Flenar begins and ends his challenge to Shirey’s spoliation claim by

       discussing public-policy concerns. He relies heavily on Glotzbach, 854 N.E.2d

       337, where our Supreme Court ordered the dismissal of a third-party spoliation

       claim. In that case, a man was working with an electric pump when there was

       an explosion, and he suffered fatal burns. His employer removed its equipment

       and debris from the explosion site and disposed of it. The employee’s estate

       Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 14 of 24
       brought a product-liability claim against the manufacturer of the pump and later

       added a spoliation claim against the employer. The trial court denied the

       employer’s motion to dismiss the spoliation claim, but our Supreme Court

       reversed. Id. at 339.


[26]   In doing so, the Court placed the greatest weight on the public-policy

       considerations. The Court identified some characteristics that all spoliation

       claims have in common. First, there are options other than a tort action to

       deter or remedy spoliation: criminal sanctions (e.g., perjury or obstruction of

       justice), sanctions under the Indiana Rules of Professional Conduct “if

       attorneys for the third party are involved in the misconduct,” and contempt

       sanctions against “non-parties who frustrate the discovery process by

       suppressing or destroying evidence.” Id. at 341. Second, “Proving damages in

       a third-party spoliation claim becomes highly speculative and involves a lawsuit

       in which the issue is the outcome of another hypothetical lawsuit.” Id. “The

       jury would be asked to determine what the damages would have been had the

       evidence been produced and what the collectibility of these damages would

       have been. We think this exercise often could properly be described as

       ‘guesswork.’” Id. (quoting Petrik v. Monarch Printing Corp., 501 N.E.2d 1312,

       1320 (Ill. App. Ct. 1986)).


[27]   The Court also addressed several matters specific to the case before it. It noted

       that “the employee is entitled to worker’s compensation, and permitting claims

       of spoliation by the employer would open the door to satellite litigation against

       the employer that the WCA [Worker’s Compensation Act] is designed to

       Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 15 of 24
       foreclose.” Id; see also Ind. Code § 22-3-2-6 (providing that WCA is exclusive

       remedy available to employees for accidental personal injury arising out of and

       in course of employment). The Court added, “Perhaps most significantly, the

       employer is entitled to recover some of its worker compensation benefits if the

       employee can establish a product liability claim,” so “[i]t is in the employer’s

       interest to preserve evidence that may aid in pursuing these subrogation rights

       against the manufacturer.” Glotzbach, 854 N.E.2d at 341 (citing Ind. Code § 22-

       3-2-13). Finally, the Court explained that recognizing a duty to preserve in the

       case would “raise[] operational issues for the employer. Without a strong

       showing of need, we should not impose an obligation to retain useless

       equipment indefinitely or to refrain from repairing equipment necessary to

       conduct the employer’s business.” Id. at 341-42. In the end, the Court carefully

       limited its holding to the circumstances of the case: “We hold that an employee

       whose injuries are covered by the Worker’s Compensation Act has no claim

       against the employer for spoliation of evidence related to that incident.” Id. at

       337.


[28]   Dr. Flenar makes no argument that the alternative sanctions discussed in

       Glotzbach—criminal charges, professional misconduct charges against an

       attorney, and discovery sanctions—would be of any value in this case. It is

       highly unlikely that Dr. Flenar would be charged with a crime, even if it turned

       out that he intentionally destroyed the records. Moreover, there is no

       indication that any attorneys were involved in the destruction of the records.

       Nor is there any indication that the destruction of the records frustrated any
       Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 16 of 24
       “discovery process”—as far as we know, there was never any court case relating

       to the underlying personal-injury claim in which discovery could have even

       been conducted.


[29]   Instead, Dr. Flenar focuses on the potential for speculation in the determination

       of damages. He asserts:


               Any alleged damages in this matter would be highly speculative,
               just as the Court noted in Glotzbach. In order to prove damages,
               Shirey would have to prove that she was entitled to damages in
               her personal injury lawsuit, that Dr. Flenar’s medical records
               would have increased her damages award or settlement, and the
               collectability of the increased amount. Determining the
               difference in recovery between what [Shirey] will recover in
               settlement and what she may have recovered if she had
               additional medical records is highly speculative and amounts to
               guesswork.


       Appellee’s Br. pp. 15-16. We share Dr. Flenar’s concern, but only to an extent.

       Speculation regarding damages is a worry in every spoliation case, since every

       spoliation case, by definition, involves missing evidence. But if our Supreme

       Court found this fact dispositive, it easily could have foreclosed third-party

       spoliation claims entirely, in either Gribben or Glotzbach. Because it did not, we

       treat the difficulty of determining damages as just one relevant factor.


[30]   Dr. Flenar also contends that public policy weighs against allowing Shirey’s

       claim because she “has not alleged bad faith by Dr. Flenar or alleged that he

       affirmatively acted to destroy evidence to avoid or lessen his liability.” Id. at


       Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 17 of 24
       16. We fail to see how this favors Dr. Flenar. In Thompson, the only case in

       which we have recognized a spoliation claim, there were no allegations of bad

       faith or intentional wrongdoing. In fact, we specifically noted that “the

       Thompsons sued the Insurance Company for negligence.” Thompson, 704

       N.E.2d at 136 (emphasis added).


[31]   As for the other policy considerations identified in Glotzbach, we agree with

       Shirey that none of them are relevant here. This case does not involve worker’s

       compensation, so the exclusivity and subrogation provisions of the Worker’s

       Compensation Act are not implicated. See Glotzbach, 854 N.E.2d at 341.

       Furthermore, recognizing a duty to preserve in this situation would not impose

       any new burden or obligation on doctors, since they generally maintain medical

       records anyway. See id. at 342 (“Without a strong showing of need, we should

       not impose an obligation to retain useless equipment indefinitely or to refrain

       from repairing equipment necessary to conduct the employer’s business.”).

       Finally, we think it noteworthy that the Glotzbach Court did not criticize or

       disapprove our decision to allow a spoliation claim in Thompson. And in

       Thompson, we emphasized that a policy of accountability “undergirds Indiana’s

       common law tort doctrine.” 704 N.E.2d at 139. To preclude Shirey’s claim at

       this early stage of the litigation “would be to ignore” that policy. See id.


[32]   In sum, we conclude that all three Webb factors favor Shirey. We therefore

       hold that Dr. Flenar had an enforceable duty to preserve Shirey’s medical

       records once she requested them from him and that the trial court erred by

       granting Dr. Flenar summary judgment on Shirey’s spoliation claim. As with
       Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 18 of 24
       any negligence case, there are other elements beyond duty—namely, breach,

       proximate cause, and damages. But those issues are beyond the scope of Dr.

       Flenar’s motion for summary judgment. In the trial court, Dr. Flenar did not

       address spoliation until his reply brief, and even then his argument was limited

       to three paragraphs. He said little about the particulars of Shirey’s claim,

       focusing instead on general public-policy arguments. And the only evidence he

       designated—his own affidavit about his struggles with his software provider—is

       insufficient to negate a spoliation claim as a matter of law. Given the narrow

       scope of Dr. Flenar’s argument, as well as our general preference for letting

       even marginal cases proceed to trial, see Hughley, 15 N.E.3d at 1004, we will

       allow Shirey’s spoliation claim to proceed.


[33]   Affirmed in part, reversed in part, and remanded.


       Baker, J., concurs with opinion.


       Crone, J., concurs with opinion.




       Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 19 of 24
                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Mary (Jones) Shirey,                                      December 21, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                02A03-1704-MI-876
              v.                                                Appeal from the Allen Superior
                                                                Court
      Rex Flenar, M.D.,                                         The Honorable Craig J. Bobay,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                02D02-1608-MI-837



      Baker, Judge, concurring.


[1]   I am compelled to concur, though I do so with great dissatisfaction. While I

      acknowledge that we are bound to abide by our Supreme Court’s ruling in

      Gordon, I take the opportunity to respectfully disagree with the holding in that

      case.


[2]   In my view, the doctor-patient relationship has always borne a common law

      duty in the doctor to retain her patients’ medical records and, concomitantly, to

      produce them when asked. While the doctor maintains, updates, and stores


      Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017           Page 1 of 24
      those records, it cannot be denied that, at the end of the day, they belong—or at

      least partially belong—to the patient.


[3]   Indeed, our General Assembly has acknowledged and codified this duty by

      enacting Indiana Code section 16-39-1-1(c). In so doing, the legislature

      confirmed that the public policy of this State is to protect the right of patients to

      have access to their medical records. It defies logic to conclude that by giving

      the Department of Health the power to enforce this right, the legislature also

      extinguished our common law power, as citizens, to enforce it for ourselves.

      To conclude on the one hand that the General Assembly acknowledged and

      protected this right and, on the other, that it dramatically curtailed it, is to

      ascribe a lack of reason to our legislators that I believe is unwarranted.


[4]   If a doctor decided to have a bonfire with her patients’ medical records—or, in

      this day and age, if she decided to terminate her relationship with the company

      responsible for online maintenance of those records, knowing that such

      termination would lead to the deletion of the records—public policy would

      surely dictate that her patients would have a right to recover for those actions.

      While there is no evidence of knowing malfeasance in the case at hand, under

      Gordon, the result would be the same in either situation.


[5]   And that result, as acknowledged by Judge Crone, is no result at all. Because if

      the Department of Health is the only entity with the right to enforce Title 16, to

      the exclusion of individual citizens, and the right that the Department would be

      enforcing in this case is the right to have one’s health records supplied upon


      Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 2 of 24
      request, if those records are simply gone, then there is nothing to be done.

      Under Gordon, there is simply no consequence whatsoever if a doctor loses her

      patients’ medical records, whether by carelessness, malfeasance, or

      circumstance. I simply cannot countenance such a result. I do not believe that

      this furthers the public policy of Indiana, either from the perspective of the

      citizens or the General Assembly.


[6]   To tell the citizens of this State that their physicians are required to maintain

      their medical records, but that there is no consequence for a failure to do so—

      even when that failure results in financial or health-related consequences to

      patients—is to make the requirement wholly meaningless. I encourage our

      Supreme Court to reconsider the Gordon holding. But in the meantime, as I am

      bound to abide by it, I reluctantly concur with the majority.




      Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 3 of 24
                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Mary (Jones) Shirey,                                      December 21, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                02A03-1704-MI-876
              v.                                                Appeal from the Allen Superior
                                                                Court
      Rex Flenar, M.D.,                                         The Honorable Craig J. Bobay,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                02D02-1608-MI-837



      Crone, Judge, concurring.


[1]   I fully concur as to issue II. I also concur as to issue I, but only reluctantly, and

      only because we are bound by our supreme court’s restrictive approach to

      recognizing statutorily created private rights of action. See Gordon, 952 N.E.2d

      at 186-88 (finding no private right of action under record-retention statute); see

      also Doe #1, 81 N.E.3d at 202-04 (finding no private right of action under statute

      prohibiting Department of Child Services from identifying reporters of child

      abuse). As noted above, our supreme court has said that “[w]hen a statute

      expressly provides one enforcement mechanism, courts may not engraft

      Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017           Page 1 of 24
another.” Doe #1, 81 N.E.3d at 204. Indiana Code Section 16-19-3-18(b)

provides that the State Department of Health “may bring an action to enforce”

Title 16, which includes the record-production statute, and that “[t]he court in

such an action has jurisdiction to compel or enforce the provisions of this title

by injunction.” An enforcement action would be futile in cases like this one,

where the medical records at issue have been destroyed. Were it not for our

supreme court’s holding in Gordon, I would be inclined to hold that Shirey has a

private right of action against Dr. Flenar under the record-production statute,

which was designed primarily to protect individual patients and, at least in this

situation, is incapable of being enforced by the State Department of Health.




Court of Appeals of Indiana | Opinion 02A03-1704-MI-876 | December 21, 2017   Page 2 of 24
