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Jost v. Lakeland Regional Medical Center3/12/2003
The alleged spoliation of evidence in a medical malpractice case provides the framework for this appeal. Ms. Jost, in her amended complaint, claimed that Lakeland Regional Medical Center (LRMC) had rendered negligent medical treatment to Arthur Myers and that both LRMC and American Continental Insurance Co. (ACIC) had concealed or destroyed evidence. ACIC moved to dismiss the amended complaint while LRMC moved to dismiss the four counts dealing with the spoliation of evidence. The trial court entered an order granting with prejudice both ACIC's and LRMC's motions to dismiss. We affirm the dismissal, with respect to LRMC, of the four counts of the amended complaint concerning the spoliation of evidence. As to ACIC, while we affirm the trial court's dismissal of the concealment of evidence claims, we reverse the dismissal with prejudice of the destruction of evidence charges and find that the dismissal of those claims should have been without prejudice.
This is not the first time the parties have been before this court. Initially Ms. Jost, then acting as plenary guardian of Mr. Myers, filed a medical malpractice lawsuit alleging that the permanent brain damage suffered by Mr. Myers occurred as a result of the negligence of Dr. Amir Ahmad and LRMC. The case was tried before a jury and resulted in a verdict in favor of the defendants. One of the grounds on appeal was the trial court's exclusion of communications between Dr. Walter Gray, a fact witness called by Ms. Jost, and the risk management officer where Dr. Gray worked. Finding that the trial court committed reversible error in excluding the communications, this court ordered that a new trial be held. Jost v. Ahmad, 730 So. 2d 708, 711 (Fla. 2d DCA 1998).
After remand, but before a retrial could occur, Mr. Myers died. In her capacity as personal representative of Mr. Myers' estate, Ms. Jost filed the amended complaint at issue which presented the same claims for medical malpractice previously asserted. In addition, the amended complaint joined ACIC, the insurer for LRMC, and added the counts for spoliation of evidence against both LRMC and ACIC.
ACIC and LRMC moved to dismiss the spoliation counts arguing, in part, that Ms. Jost had failed to state a cause of action. The trial court dismissed with prejudice the spoliation counts while allowing the medical malpractice charges to go forward. On appeal, Ms. Jost submits that a cause of action for spoliation has long been authorized under Florida law and that it was error for the trial court to dismiss her claims for spoliation. In a recent opinion, this court acknowledged that " poliation is a recognized cause of action in Florida." Townsend v. Conshor, Inc., 832 So. 2d 166, 167 (Fla. 2d DCA 2002). In order to establish a cause of action for spoliation, a party must show:
(1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages. Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088, 1091 (Fla. 4th DCA 2001) (quoting Continental Ins. Co. v. Herman, 576 So. 2d 313, 315 (Fla. 3d DCA 1990)).
In her amended complaint, Ms. Jost has intertwined her claims of concealment and destruction of evidence as the basis for the spoliation charges. Concealment of evidence, however, does not form a basis for a claim of spoliation. See, e.g., Florida Evergreen Foilage v. DuPont, 165 F. Supp. 2d 1345, 1360 (S.D. Fla. 2001) (concluding that " 'concealment' of evidence is not act
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