Cremation Spoliation: Adventist v. Mattingly 1
The Baltimore Medical Malpractice Lawyer Blog discusses legal issues in Maryland medical malpractice cases. In part 1 of this post below, I discuss the defendants’ assertion that a mother’s cremation of her son constituted a spoliation of evidence. The case is the reported opinion by the Court of Special Appeals in Adventist Healthcare, Inc. v. Mattingly, 244 Md. App. 259 (2020).
Part 2 of this Blog post will discuss an issue involving expert testimony on causation.
Factual Background
The plaintiff died five days after a procedure to reverse his colostomy. Afterward, his mother filed a medical malpractice case in the Circuit Court for Prince George’s County. The plaintiff claimed the defendants failed to diagnose and treat a bowel leak promptly following the surgery. These failures led to infection and fatal sepsis. (Op. at 1).
The colostomy reversal procedure is known as an anastomosis. This procedure sews back together the two disconnected sections of the colon. There specifically is a risk of a leak at the point of sewing. (Id. at 4).
During the days following the reversal, the plaintiff appeared to be recovering well. Four nights later, his condition deteriorated, and he was in pain. (Id.). He vomited bile, and his stomach was distended and tender. The doctor finally ordered an x-ray but that was delayed. By 2 ½ hours, the plaintiff had abnormal vital signs. Almost two more hours later, the plaintiff coded and could not be revived. (Id. at 5).
The following are the facts that the defense would claim constituted cremation spoliation. The state medical examiner declined an autopsy. Afterward, the plaintiff’s lawyer arranged for a pathologist to do a private one. The autopsy preserved samples in the same fashion as one conducted by the state (Id. at 9). It appears the plaintiff did not tell the defendants that the autopsy was going to be done, and the autopsy was not videotaped. The plaintiff was then cremated. (Id. at 10).
The defense moved for summary judgment, arguing that the plaintiff engaged in spoliation of evidence by conducting the private autopsy and then cremation of the body. The circuit court then denied the motion. (Id. at 10).
Trial
At trial, the plaintiff called a pathologist who testified that, based on a review of all the materials, the plaintiff died from a failed anastomosis. The failure allowed bowel contents into the peritoneal cavity, causing a fatal infection. The plaintiff also put on expert testimony that the defendants breached the standard of care by not responding to the symptoms earlier. There was also causation testimony that the plaintiff would have lived if he had earlier surgery. (Id. at 10-13).
The jury returned a verdict of $1,350,000 in favor of the plaintiff, which the court reduced to $740,000 under Maryland’s statutory cap on noneconomic damages. The defendants then appealed. (Id. at 13).
The Court of Special Appeals
The defendants argued on appeal that the circuit court erred by not granting their motions on cremation spoliation and not giving a jury instruction. (Id. at 14).
Spoliation is the principle that a party should not be allowed to support its claim or defense with physical evidence that it has destroyed to the detriment of its opponent. The court considers whether there has been an act of destruction, whether the destroyed evidence was discoverable, whether there was an intent to destroy the evidence, and whether the destruction occurred at a time after the suit has been filed or, if before, at a time when the filing was fairly perceived as imminent. (Id. at 15).
The defense argued that the private autopsy and cremation without notice to them was an act of destruction that constituted spoliation. The plaintiff denied an act of destruction, asserting that the autopsy sought the cause of death and that cremation was an appropriate final arrangement. (Id.).
Holding on Cremation Spoliation
There were no on-point Maryland cases. The appellate court recognized that a grieving family must determine the appropriate disposition of their loved one’s remains, which can be time-sensitive and fraught. The court found the defense’s argument “unconscionable” that the mother’s seeking of answers for her son’s death and her cremation arrangement constituted spoliation. The court then held that lawful cremation is not an act of destruction or an intent to destroy evidence for purposes of spoliation. Further, the court held that the mother had no duty to preserve evidence, permit the defense to participate in the autopsy or notify the defense before cremation. (Id. at 19-20). As a result, the circuit court correctly denied the defense’s cremation spoliation motions. (Id. at 23).
The CSA also held that the circuit court properly denied the defense’s request for a jury instruction on cremation spoliation. Since the court ruled that the plaintiff did not engage in cremation spoliation, the facts did not generate such an instruction. (Id. at 24).
Commentary by the Baltimore Medical Malpractice Lawyer on Cremation Spoliation
This decision was an easy decision for the CSA, and rightly so. They were correct in finding the defense’s cremation spoliation argument unconscionable. The suggestion that the mother violated legal evidentiary principles in making final arrangements for her son was offensive.
This case is illuminating to those unfamiliar with the lengths that medical malpractice defendants will go to avoid responsibility for the harm they caused. The plaintiff died a slow death over many hours in front of his mother and under the watch of the defendants. Instead of taking responsibility, the defendants tried to justify their negligence at trial and then claim cremation spoliation. They refused to accept the decision when that predictably failed before the jury. They pursued an appeal that had no chance of success. This case is another reminder of the necessity of the medical malpractice justice system.
Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.