The plaintiff’s decedent, age three, began to choke on a piece of candy while in a store. An ambulance from the defendant arrived and paramedics placed an endotracheal tube that was not in the lungs, causing hypoxia, cardiac arrest and permanent brain injury.

The plaintiffs claimed that the endotracheal tube was placed in the esophagus instead of the trachea. During the discovery process, the plaintiffs sought access to various records of the defendant regarding the incident, particularly the records prepared in connection with the cardiac monitor strips. The documents could never be found.

The defendant contended that the tube was properly inserted.

The court ruled that the plaintiff would be entitled to a spoliation of evidence instruction. The parties then settled for $1.3 million.

With permission from Medical Malpractice Verdicts, Settlements & Experts; Lewis Laska, Editor, 901 Church St., Nashville, TN 37203-3411, 1-800-298-6288.