Fort Wayne Indiana Personal Injury Lawyer and Attorney Blog

Podiatrist Who Failed to Keep Adequate Records Still Released from Lawsuit

By Jack H. FarnbauchJuly 30, 2018

Dr. Elliott Kleinman operated on Rickie Henderson’s right foot on Aug. 27, 2010, but the pain in her foot continued. When another doctor told Henderson her lingering pain was likely caused by the surgery, she filed a medical malpractice complaint alleging Kleinman failed to meet the appropriate standard of care.

A medical review panel reviewed the complaint but failed to conclude whether Kleiman met the standard of care due to his failure to keep adequate records. Henderson then took her complaint to the Vigo Superior Court, where Kleiman moved for summary judgment and designated the affidavit of Dr. J. Michael Miller, who stated Kleinman’s records “provided (him) with sufficient information to reliably formulate and render” an opinion on whether Kleinman met the applicable standard of care. Miller then stated Kleinman met that standard during the August 2010 surgery, and the trial court granted Kleinman’s summary judgment motion.

Mr. Henderson then appealed his case to the Indiana Court of Appeals. The Court ultimately affirmed the decision of trial court in favor of Kleinman but noted that it was dealing with “an extremely unusual case.” This was an unusual case because it dealt with a doctor’s responsibility to keep adequate medical records. Essentially what this case came down to was that Henderson failed to prove that Kleinman did not keep adequate records. Because of this, the Appeals Court declined to overrule the summary judgment decision. 

The Appeals Court wrote in their ruling that they “firmly believe that the presence or absence of medical records is certainly a factor in the determination of whether or not medical malpractice occurred in any case,” but “in the face of an admissible affidavit from a competent expert opining that Dr. Kleinman’s care of Henderson was within the applicable standard of care notwithstanding his extremely poor recordkeeping … it is inadequate as a matter of law to respond solely by pointing only to the Panel’s finding that Dr. Kleinman’s recordkeeping failed to meet the applicable standard.” 

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