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Bush v. Thomas9/19/1994
APODACA, Judge.
Defendant Dr. Harry Thomas (Defendant) appeals a judgment after a jury verdict finding him liable for negligent spoliation of evidence. Defendant raises the following issues on appeal: (1) whether New Mexico should recognize the tort of negligent spoliation of evidence; (2) if New Mexico does recognize this cause of action, whether the claim failed in this case because Plaintiff Mary Bush (Plaintiff), as personal representative of the estate of Janice Bush (Decedent), failed to prove that Defendant had a legal or contractual duty to preserve his records of Decedent's treatment; and (3) whether the claim failed because Plaintiff did not prove that loss of the records significantly impaired her ability to present her underlying claim for medical malpractice, an essential element of negligent spoliation of evidence. Assuming that New Mexico would recognize a cause of action for negligent spoliation of evidence and that Defendant had a duty to preserve the records, we hold that Plaintiff nevertheless failed to prove that loss of the medical records impaired her ability to prove her claim of malpractice against Defendant. We therefore reverse the trial court's judgment. In light of our holding, we need not determine whether negligent spoliation of evidence should be recognized as an independent tort in New Mexico and whether a physician under the facts of this appeal had any duty to preserve a patient's medical records for use in a potential civil action brought by the patient.
BACKGROUND
1. Evidence Related to Plaintiff's Underlying Medical Malpractice Claim.
Plaintiff sued Defendant for medical malpractice in connection with the death of Decedent, Plaintiff's daughter. Although Defendant's medical records of Decedent were not found, Decedent's treatment by Defendant was paid for by Medicaid. As a result of such payment, the Medicaid records showed the date of each visit, the diagnosis, and any prescriptions ordered. The evidence showed that Defendant first saw Decedent on September 3, 1986, at which time he prescribed Valium, known generically as diazepam. Defendant first prescribed Darvon, known generically as propoxyphene hydrochloride, for Decedent in January 1988. He prescribed Darvon for Decedent seventeen times, the last prescription being made on June 6, 1989, the day before Decedent's death.
According to the Medicaid records, a diagnosis of "opioid dependence" originated from Defendant's office in connection with six of Decedent's visits. Other evidence unrelated to Defendant's treatment, including University of New Mexico Hospital records and the testimony of another doctor, Dr. Kassicieh, who had also treated Decedent, showed that Decedent had a history of drug abuse. Defendant testified that Decedent did not exhibit symptoms indicating she was abusing Darvon. Decedent saw Defendant four times on the date her Darvon prescription would have been used up if taken as prescribed; on all other occasions, she came in a week or two after the prescription would have been used up. Defendant's former office manager testified that she noted the Medicaid codes for the diagnoses on Defendant's bills and that Defendant never gave her a chart with the diagnosis "opioid dependence."
On the evening before her death, Decedent sniffed paint for thirty to forty-five minutes before going to bed. She was discovered dead the next morning. The bottle of Darvon prescribed for Decedent by Defendant the previous day was found in her purse. It contained forty-five of the seventy-two tablets that had been prescribed. The autopsy report noted that Decedent's body contained Darvon, in the amount of 3.5 milligrams per liter, and toluene, a propell
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