University Medical Center, Inc. v. Beglin

Opinion of the Court by

Justice VENTERS.

We granted discretionary review in this matter to examine when it is proper for the trial court to give a missing evidence instruction, and whether it was permissible here to hold an employer liable for punitive damages based upon the gross negligence of an employee. University Medical Center, Inc. d/b/a University of Louisville Hospital (“University Hospital”), appeals from an opinion of the Court of Appeals which affirmed a judgment entered by the Jefferson Circuit Court in favor of Appel-lee, Michael G. Beglin.¹ Based upon a jury verdict, the trial court entered judgment awarding the following compensatory damages: $1,922,102.00 for the destruction of Jennifer Beglin’s power to labor and earn money; $367,358.09 for her medical expenses; $7,543.00 for her funeral and burial expenses; and $3,000,000.00 for her children’s loss of parental consortium. The jury also awarded $3,750,000.00 in punitive damages, resulting in a total award of $9,047,003.09.

The damages were based upon a finding of the jury that the hospital, through its employees and agents, acted negligently in causing the death of Jennifer Beglin.² Co-defendants, Dr. Susan Galandiuk (the surgeon) and Dr. Guy M. Lerner (the anesthesiologist), were found not liable by the jury.

University Hospital³ presents the following three issues: (1) the trial court erred by giving a missing evidence instruction; (2) the trial court erred by giving a punitive damages instruction; and (3) the giving of the missing evidence and punitive damages instructions violated its due process rights. For the reasons stated below, we determine that the trial court properly gave a missing evidence instruction, and we affirm the judgment awarding compensatory damages. However, we hold that the trial court erred in giving a punitive damages instruction under the circumstances of this case. We therefore reverse the punitive damages award and remand for entry of a new judgment. By these determinations, University Hospital’s due process arguments relating to punitive damages are moot, and it is not otherwise entitled to relief under these claims.

I. FACTUAL AND PROCEDURAL BACKGROUND

Considering the evidence in the light most favorable to the verdict, the essential facts are as follows. During surgery at University Hospital, Beglin’s wife, Jennifer, suffered unexpected and substantial blood loss. Because of an unreasonable delay in obtaining blood from the hospital blood bank, she sustained an anoxic brain injury caused by the lack of oxygen-carrying blood, leaving her in a permanent vegetative state. She passed away on October 9, 2003, after life support was withdrawn by her family.

Evidence indicated that when the surgeons recognized that a blood transfusion was vital, they ordered a blood sample to be drawn and taken to the hospital blood bank to ascertain Jennifer's blood type, and requested that the blood needed for the transfusion be ordered. Nurse Cant-rall,⁴ an employee of University Hospital on duty to assist the Beglin surgery, was charged with the responsibility of ordering the blood. Ordinarily that process would take forty-five to fifty minutes. In a dire emergency, universal donor blood could be obtained from the blood bank in ten minutes. The evidence established that, unbeknownst to the surgeons, twenty-five minutes elapsed before Cantrall transmitted the order for blood to the blood bank. As Jennifer’s blood loss continued, her need for a blood transfusion became desperate and immediate. Surgeons and staff in the operating room, including Cantrall, began frantic efforts to obtain the blood.⁵ By the time the blood arrived, sixty-seven to seventy minutes had lapsed from when the surgeons first ordered it.

From the verdict, it appears that the jury believed that University Hospital, through its employees, Cantrall and the blood bank, acted with gross negligence in the failure to timely deliver the necessary blood, and thereby caused Jennifer’s death.

One of the standardized forms used by University Hospital is captioned “occurrence report.” It is to be used by employees in the ordinary course of business when significant events occur to document their experience and observations for subsequent review by the hospital’s risk management staff in assessing legal liability issues. Pursuant to the hospital’s policies, the reports are highly confidential and are not placed in patient files. The reports are initially filed with, and are routed through, the Risk Management Department. Therefore, given the importance and high level of confidentiality of the documents, it is a reasonable inference to conclude that the reports are, in the normal course of business, carefully preserved.

At her pre-trial deposition, Cantrall testified to her belief that she had not prepared an occurrence report, but if she had prepared one she would have included a chronology and her perception of the significant events that occurred during surgery. However, at trial Cantrall testified that following Jennifer’s surgery she did complete an occurrence report form at the direction of Charge Nurse Elaine Strong, and placed it as required in the front desk bin for distribution. She further testified that the only information she believed she had recorded on the report is that CPR had been performed in the operating room, and that she included nothing about the time taken to obtain the blood from the blood bank. Strong denied asking Cant-rall to prepare a report and denied ever seeing Cantrall’s occurrence report. No one else testified to having any knowledge of the report’s existence or content.

II. THE MISSING EVIDENCE INSTRUCTION WAS PROPERLY GIVEN

University Hospital first argues that the trial court erred by giving the missing evidence instruction in connection with the unexplained disappearance of the occurrence report that Cantrall testified she prepared immediately following the operation pursuant to normal hospital procedures. Although University Hospital had exclusive care, custody, and control of the report (if it existed), it is unable to offer any explanation to account for its disappearance. University Hospital contends that it was fundamentally improper and contrary to Kentucky law for the trial court to give the missing evidence instruction when there was no evidence to show that it had intentionally and in bad faith lost or destroyed the document. It further argues that the instruction improperly influenced both the general verdict of liability and the punitive damages award by insinuating that the hospital covered-up adverse evidence. For the reasons stated below, we conclude that the instruction was properly given.

The Missing Evidence Instruction

Following the form approved in Sanborn v. Commonwealth, 754 S.W.2d 534, 539-540 (Ky.1988), overruled on other grounds by Hudson v. Commonwealth, 202 S.W.3d 17 (Ky.2006), the trial court gave, over the hospital’s objection, this missing evidence instruction:

If you find from the evidence that an incident report was in fact prepared by Nurse Barbara Cantrell recording material information about Mrs. Beglin’s surgery, and if you further find from the evidence that University Medical Center, Inc. d/b/a University of Louisville Hospital, intentionally and in bad faith lost or destroyed the incident report, you may, but are not required to, infer that the information recorded in the incident report would be, if available, adverse to University Medical Center and favorable to the plaintiffs.

This remains the approved instruction in both criminal and civil cases. See Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky.1997) (“Where the issue of destroyed or missing evidence has arisen, we have chosen to remedy the matter through evi-dentiary rules and ‘missing evidence’ instructions.”) All agree that the Sanborn instruction accurately sets forth the elements necessary to permit a jury to draw an adverse inference from missing evidence.⁶

The text of the instruction further demonstrates two important factors relevant to our review. First, the instruction contemplates that the jury will engage in fact-finding (“If you find from the evidence ... ”), thereby implying that, like any other issue, if there is a factual dispute in relation to the issue, the jury will resolve the disagreement. This obviously implies that, under our law, the trial court does not make any final and conclusive factual determination upon the elements of a missing evidence instruction. Second, the adverse inference portion of the instruction is optional (“you may, but are not required, to infer ...”). The approved instruction does not impose upon the jury a duty to draw the adverse inference even when it believes the evidence was intentionally disposed of.

As a final note, the instruction did not require the jury to affirmatively indicate in the jury verdict forms its findings or determinations in relation to the instruction. We therefore do not know if the jury found for or against University Hospital under the instruction and, consequently, whether it had any impact at all on the verdicts. It is possible that the jury concluded that the report was lost innocently, and did not hold the disappearance of the report against University Hospital.

Evidentiary Standards for Obtaining the Instruction

University Hospital contends that the jury should not have been given the missing evidence instruction because Beglin did not show that the loss of the evidence was due to a cause other than mere negligence, and that all that was proven with respect to the occurrence report was that its disappearance was unexplained. There is no evidence to say whether the loss was intentional or accidental. Therefore, the principal issue we address is the evidentia-ry prerequisite for giving the instruction when potentially relevant evidence is inexplicably unavailable.

Citing to Brewer v. Dowling, 862 S.W.2d 156 (Tex.App.1993)⁷ and Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326 (3rd Cir.1995),⁸ University Hospital argues that “[a] lost or missing document is insufficient as a matter of law to warrant a spoliation instruction.”

University Hospital and Amici, Kentucky Hospital Association and the Kentucky Chamber of Commerce, argue that the instruction is “particularly invidious” and extraordinarily prejudicial to the party against whom it is given. They suggest that a low evidentiary threshold for obtaining the instruction would encourage attorneys to invent missing documents in order to portray the opposing party as being engaged in a cover-up. They assert, therefore, that the party seeking the instruction must be required to present affirmative evidence that the missing evidence was material and that its loss was the result of bad faith and not due to simple negligence or accidental destruction.

Upon examination of the authorities cited by University Hospital and Ami-ci, we agree that the instruction must be supported by evidence, but we disagree that sound jurisprudence imposes an unusually onerous burden to obtain the instruction. We reject their position that direct and conclusive evidence of intentional and bad faith destruction as pre-deter-mined by the trial court are absolute prerequisites for obtaining the instruction. As further explained below, we believe the better rule is that the requisite elements giving rise to the missing evidence inference may be proven, like virtually any other factual issue, by circumstantial evidence and reasonable inferences, much as would be required for any other type of instruction.

In this conclusion, we are particularly persuaded by the opinion of then Judge, now Justice, Stephen Breyer in Nation-Wide Check Corp., Inc. v. Forest Hills Distributors, Inc., 692 F.2d 214, 217 (1st Cir.1982), wherein he noted the noncontroversial principle, “[wjhen the contents of a document are relevant to an issue in a case, the trier of fact generally may receive the fact of the document’s nonproduction or destruction as evidence that the party which has prevented production did so out of the well-founded fear that the contents would harm him.” Id. at 217. He further noted Wigmore’s assertion that nonproduction alone “is sufficient by itself to support an adverse inference even if no other evidence for the inference exists:”

The failure or refusal to produce a relevant document, or the destruction of it, is evidence from which alone its contents may be inferred to be unfavorable to the possessor, provided the opponent, when the identity of the document is disputed, first introduces some evidence tending to show that the document actually destroyed or withheld is the one as to whose contents it is desired to draw an inference.

Id. (quoting 2 Wigmore on Evidence § 291 (Chadbourn rev. 1979) (emphasis added)). “The inference depends, of course, on a showing that the party had notice that the documents were relevant at the time he failed to produce them or destroyed them.” Id. See also 89 C.J.S. Trial § 666(“In order to justify the court in giving an instruction, predicated on a supposed state of facts, it is not necessary that the court should be satisfied that the hypothetical case is fully sustained by the testimony.”)

Thus, in contrast to the authorities cited by University Hospital, Judge Breyer’s analysis does not at all suggest the enhanced burden advocated by the hospital. His reasoning for a lesser standard becomes clearer when the reasons behind the adverse inference instruction are considered:

The adverse inference is based on two rationales, one evidentiary and one not. The evidentiary rationale is nothing more than the common sense observation that a party who has notice that a document is relevant to litigation and who proceeds to destroy the document is more likely to have been threatened by the document than is a party in the same position who does not destroy the document. The fact of destruction satisfies the minimum requirement of relevance: it has some tendency, however small, to make the existence of a fact at issue more probable than it would otherwise be. See Fed.R.Evid. 401. Precisely how the document might have aided the party’s adversary, and what eviden-tiary shortfalls its destruction may be taken to redeem, will depend on the particular facts of each case, but the general evidentiary rationale for the inference is clear.

The other rationale for the inference has to do with its prophylactic and punitive effects. Allowing the trier of fact to draw the inference presumably deters parties from destroying relevant evidence before it can be introduced at trial. The inference also serves as a penalty, placing the risk of an erroneous judgment on the party that wrongfully created the risk. In McCormick’s words, “the real underpinning of the rule of admissibility [may be] a desire to impose swift punishment, with a certain poetic justice, rather than concern over niceties of proof.” McCormick on Evidence § 273, at 661 (1972).

Id. at 217-218; Akiona v. U.S., 938 F.2d 158 (9th Cir.1991).

In light of these important rationales — evidentiary and deterrent — when the evidence is missing “utterly without explanation,” and where, as in the instant case, the party who has lost it had absolute care, custody, and control over the evidence, we believe that the better practice is to treat missing evidence like any other evidentiary issue, and refrain from placing an enhanced burden upon the opposing party to obtain the instruction. We therefore adopt no special rule for measuring the quantum or quality of evidence that will authorize a missing evidence instruction. A trial court may use normal inferences and suppositions,⁹ and may rely upon circumstantial evidence¹⁰ in deciding whether to admit missing evidence testimony or give a corresponding instruction. In other words, the standard is as typical as with any other issue.

Trial courts are vested with discretion in deciding what admonitions and instructions to the jury are appropriate under the evidence and attendant circumstances. Our standard of appellate review of a trial court’s determinations in these type of cases will be pursuant to the abuse of discretion standard, which is the usual standard of review for a trial court’s decision on whether to admit or exclude evidence, Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky.2000), or to give an instruction, Harris v. Commonwealth, 313 S.W.3d 40, 50 (Ky.2010).

It is necessary to clarify, however, that there are certain circumstances in which well established authority provides that a missing evidence instruction should not be given. Among these is when the proof shows that the evidence was lost as a result of “mere negligence.” Mann v. Taser Intern., Inc., 588 F.3d 1291, 1310 (11th Cir.2009). This fits comfortably within our missing evidence standard, because mere negligence negates bad faith, an element of the instruction. Similarly, other common types of cases where the instruction will not be warranted include loss of evidence as a result of fire, weather, natural disaster, other calamities, or destruction in the normal course of file maintenance, particularly in accordance with industry or regulatory standards. Lawson, The Kentucky Evidence Law Handbook, § 2.65[3] (4th ed. 2003) (An inference based on destruction (or loss) may not be drawn if the destroyer acted inadvertently (mere negligence) or if there is an adequate explanation for the destruction (or loss)); Millenkamp v. Davisco Foods Intern., Inc., 562 F.3d 971 (9th Cir.2009) (No missing evidence inference is proper when evidence was destroyed long before litigation was anticipated).

In rejecting the heightened standard urged by the hospital, we favor, as Nation-Wide Check Corp., Inc. presented, a standard that deters the loss of evidence and encourages parties in litigation or expecting litigation to protect and preserve evidence, even when doing so may not be to their advantage in litigation. From our perspective, the preservation of potential evidence is always a desirable policy objective. Moreover, we do not discern the giving of a missing evidence instruction as quite the apocalyptic event that University Hospital and Amici describe. Because our approved instruction simply informs the jury of an inference that it may accept or reject, the party who lost the evidence will be able to make his argument to the jury that the loss of the evidence was innocent or that the evidence itself was not unfavorable, and thereby negate the instruction.

The Missing Evidence Instruction was Properly Given in this Case

University Hospital contends that under any standard, the evidence here was insufficient to support the missing evidence instruction in this case. “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire and Rubber Co., 11 S.W.3d at 581. The evidence on the issue is as follows: Cantrall, after initially claiming that no occurrence report existed, later testified that she had prepared one immediately following the surgery and that she placed it in the receptacle designated by the hospital for such reports. The evidence showed that such reports were to be made by employees, when noteworthy events occur, to record a chronology of their perception of the event. The occurrence report prepared by Cantrall went missing, and University Hospital was unable to provide a reasonable explanation for its disappearance. No evidence exists that anyone other than a hospital employee or agent would have had access to the report. The proof established that the report was prepared for review by the hospital’s risk management staff with an eye toward potential litigation, and therefore in the ordinary course of business would have been processed with great care to preserve a document of such importance. Shortly after the surgery, Jennifer’s surgeon, Dr. Galandiuk, reported the matter to University Hospital’s risk management staff with advice that the Beglin family should not be billed for the surgery. The hospital’s employees were in a position to protect the document, to know what was in the document, and to account for its loss.

Based upon common-sense experience, the convergence of the factors described above reasonably supports an inference that the document was lost or destroyed by a person with an interest in preventing the disclosure of its contents. The rule is well settled that “[e]ach party to an action is entitled to an instruction upon his theory of the case if there is evidence to sustain it.” Farrington Motors, Inc. v. Fidelity & Cas. Co. of N.Y., 303 S.W.2d 319, 321 (Ky.1957). Under the circumstances of this ease, we are constrained to conclude that the trial court did not abuse its discretion in giving the missing evidence instruction. Though the giving of the instruction may have rested largely upon inferences and circumstantial evidence, for the reasons we have explained, that is perfectly acceptable.

In summary, as applied to the specific circumstance of this case, it is our holding that when it may be reasonably believed that material evidence within the exclusive possession and control of a party, or its agents or employees, was lost without explanation or is otherwise unaccountably missing, the trier of fact may find that the evidence was intentionally and in bad faith destroyed or concealed by the party possessing it and that the evidence, if available, would be adverse to that party or favorable to his opponent. When the trier of fact is a jury, the jury shall be so instructed.

The Missing Evidence Instruction did not Unduly Affect the General Verdict or Punitive Damages Award

As a final note on this issue, University Hospital expresses concern that special care must attend the application of the missing evidence instruction, lest it unduly influence both the general verdict of liability and the punitive damages instruction by “nudging” and “tilting” the jury to its prejudice. We do not believe the mere giving of the instruction carries with it any unfair suggestion. However, to the extent that a properly given instruction nudges or tilts the jury, we note that its purpose is to remind the jury of the inference it may draw from the fact that material evidence in the hospital’s control was missing, and thereby off-set any advantage which may have been gained by the destruction of the evidence. See Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 724 (Tex.2003) (“Because the instruction itself is given to compensate for the absence of evidence that a party had a duty to preserve, its very purpose is to ‘nudge’ or ‘tilt’ the jury.”).

We reject out of hand University Hospital’s contention that the instruction improperly influenced the punitive damages instruction. The instructions specifically limited the conduct for which punitive damages could be awarded to the crucial time period “during the operation from the time the blood was ordered until it was delivered.” The missing report had nothing to do with this conduct or time period, and the jury is presumed to follow any instructions given. Owens v. Commonwealth, 329 S.W.3d 307, 315 (Ky.2011). In any event, based upon our disposition of the punitive damages issues, this particular point is moot.

III. THE PUNITIVE DAMAGES INSTRUCTION WAS IMPROPERLY GIVEN

An employer is strictly liable for damages resulting from the tortious acts of his employees committed within the scope of his employment. Patterson v. Blair, 172 S.W.3d 361, 364 (Ky.2005). Here, the tortious act supporting the general verdict of liability was either Cantrall’s negligent delay in transmitting the blood sample and order for blood to the blood bank, or the blood bank’s delay in sending blood to the operating room. University Hospital does not challenge the general verdict. However, University Hospital contends that the trial court erred in giving a punitive damages instruction because KRS 411.184(3)¹¹ provides that, “In no case shall punitive damages be assessed against a principal or employer for the act of an agent or employee unless such principal or employer authorized or ratified or should have anticipated the conduct in question.”

In his cross motion for discretionary review, Beglin briefly challenged the constitutionality of KRS 411.184(3)’s limitation on the vicarious imposition of punitive damages upon the tortfeasor’s employer. However, this Court’s order granting the cross-motion expressly denied review of that issue, and, consequently, the hospital did not respond to the point. Also, our review of the record fails to disclose that the Attorney General was notified of Beg-lin’s intent to challenge to the constitutionality of KRS 411.184(3), as required by KRS 418.075(2). Therefore, we make no determination relating to the constitutionality of KRS 411.184(3), notwithstanding the forceful treatment of the issue in Justice Scott’s dissenting opinion. Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky.2008) (“[w]e have made plain that strict compliance with the notification provisions of KRS 418.075 is mandatory.”); Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 815 (Ky.2004) (Arguments not pursued on appeal are deemed waived).

The instruction allowing an award of punitive damages against the hospital was proper only if sufficient evidence had been presented to find that University Hospital should have anticipated the wrongful conduct in question (the inordinate delay in providing blood for transfusion), or that it authorized that conduct in question, or that it ratified that conduct.

We assume for purposes of review, without deciding, that Cantrall’s conduct, or that of University Hospital’s blood bank staff, was sufficiently egregious to constitute gross negligence, the well-established common law standard for awarding punitive damages of gross negligence.¹² We then focus on whether it can be fairly found that University Hospital authorized, ratified, or reasonably could have anticipated that conduct. We conclude that it does not.

The verb “to authorize” is defined as: “1: to establish by or as if by authority: sanction (a custom authorized by time); 2: to invest especially with legal authority: empower (authorized to act for her husband)” ¹³ Accordingly, an employer’s authorization of an employee to engage in particular conduct connotes pre-approval of the conduct. Therefore, for authorization to be applicable here, we must infer University Hospital’s pre-approval of Cantrall and/or the blood bank’s conduct in delaying the delivery of the blood to the operating room during Jennifer’s surgery. No evidence here indicates that University Hospital gave, or would ever give, authority to its blood bank or nursing staff to delay the delivery of blood under the circumstances present here. To the contrary, the hospital’s policies require a mid-surgery order for blood by an authorized member of the surgical team to be carried out immediately and without delay by all relevant personnel. Accordingly, University Hospital did not authorize the delay in the delivery of blood so as to support the punitive damages instruction.

The verb “to ratify” means: “to approve and sanction formally: confirm (ratify a treaty)”¹⁴ Accordingly, ratification is, in effect, the after the fact approval of conduct, much as authorization is the before the fact approval of the conduct. The record contains no evidence that the Hospital, after the fact, approved of the grossly negligent conduct of its employees which led to Jennifer’s death. Beglin argues that the poor quality of the investigation conducted by University Hospital equates with ratification of the tortious conduct. However, the two concepts are quite distinct and we are not persuaded that University Hospital’s post-occurrence investigation amounts to approval of the conduct.

Similarly, the alleged attempt by the hospital to actively obstruct the investigation by concealing evidence of the negligence that led to Jennifer’s death may be utterly reprehensible, but still it does not constitute “ratification” of that negligence. The alleged cover-up implies, not confirmation or approval of the negligence, but disapproval and a misguided attempt by the hospital to distance itself from the tortious conduct, which is the opposite of ratification.

Finally, we find no evidence upon which one could reasonably conclude that the hospital should have anticipated the incident involved in Jennifer Beglin’s surgery. An incident of this type had never before occurred at the hospital. Cantrall and the blood bank employees were well trained and there were policies and procedures in place which required the immediate execution of an order for blood under these circumstances. But for a gross deviation from well established duties and policies, this event would not have occurred. In light of the policies and training in place which should have prevented this event from happening, the hospital clearly could not have reasonably anticipated that its employees would fail to timely execute a mid-surgery order for blood.

For the reasons explained above, there is insufficient evidence to demonstrate that University Hospital authorized, ratified, or reasonably could have anticipated the conduct of its employees which resulted in the delay in the delivery of blood to the operating room during the surgery. This appears to be precisely the sort of circumstances under which KRS 411.184(3) is intended to shield an employer from punitive damages. It follows that the trial court erred in giving the instruction, and that the Court of Appeals erred in affirming the judgment for punitive damages. Accordingly, we vacate the punitive damages award and remand for the entry of a new judgment consistent with this opinion.

TV. OTHER ISSUES

University Hospital finally contends that its due process rights were violated by: (1) the procedures relating to the giving of the missing evidence instruction, and the collateral impact of the instruction on the punitive damages award; and (2) the ex-cessiveness of the punitive damages award.

University Hospital argues that the procedures used by the trial court in deciding to give the missing evidence instruction, and the Court of Appeals’s approval of those procedures, permitted the jury to speculate that hospital employees had destroyed the occurrence report, and thereby violated its right to due process. In Section II of this opinion, we discussed extensively the propriety of the missing evidence instruction in the circumstances of this case. As reflected by our previous discussion of the issue, we find no deficiency in the missing evidence instruction given in this case, or in the propriety of giving it. No due process violations occurred as a result of the trial court’s exercising its discretion to provide the instruction. Because we reverse the punitive damages award on other grounds, University Hospital’s due process argument as it relates to punitive damages is moot, and shall not be further addressed.

University Hospital’s argument that the punitive damages award is unconstitutionally excessive is also moot.

V. BEGLIN’S CROSS-APPEAL

Appellee raised several issues on cross appeal. He acknowledges that the issues he raised would be relevant only in the event we reversed the general verdict of liability, and remanded the case for a new trial. Because we now uphold the judgment with respect to the general verdict, these issues are moot, and need not be addressed.

VI. CONCLUSION

For the foregoing reasons, the opinion of the Court of Appeals is affirmed in part and reversed in part. This cause is remanded to the Jefferson Circuit Court for entry of Judgment consistent with this opinion.

MINTON, C.J., ABRAMSON, NOBLE, and SCHRODER, JJ., concur. SCOTT, J., concurs in part and dissents in part by separate opinion, in which CUNNINGHAM, J., joins.

1 . Beglin appeared as a party individually on his own behalf and as Executor of the Estate of his wife, Jennifer W. Beglin, and as Parent and Next Friend of Minors William Patrick Beglin and Kelly Ann Beglin, the children of Jennifer W. Beglin.

2 . The punitive damages were based upon a finding of gross negligence.

3 . The Kentucky Hospital Association and the Kentucky Chamber of Commerce have filed Amicus Briefs in support of University Hospital's position in the case.

4 . Cantrall’s name is also spelled as "Cantrell” in the record. It appears that Cantrall is the correct spelling.

5 . Cantrall made eighteen calls from the operating room to the blood bank to urge haste in supplying the blood.

6 . The ongoing viability of these elements is illustrated in, for example, Tinsley v. Jackson, 771 S.W.2d 331 (Ky.1989); Estep v. Commonwealth, 64 S.W.3d 805 (Ky.2002); Coulthard v. Commonwealth, 230 S.W.3d 572 (Ky.2007); Greene v. Commonwealth, 244 S.W.3d 128 (Ky.App.2008); Farmer v. Commonwealth, 309 S.W.3d 266 (Ky.App.2009); and Fields v. Commonwealth, 274 S.W.3d 375, 416 (Ky.2008) overruled on other grounds by Childers v. Commonwealth, 332 S.W.3d 64 (Ky.2010).

7 . "Texas law recognizes the right to have a jury make certain inferences in a situation where a hospital destroys evidence, but it does not recognize this right where evidence is merely lost. Appellants were entitled to show Appellees destroyed the [evidence], but they did not do so. We will not infer spoliation or destruction of the [evidence] — intentional or otherwise — from the mere fact that it is missing. Thus appellants are not entitled to a spoliation instruction based on the second rule.” Dowling at 160 (citations omitted) (emphasis original).

8 ."[I]t must appear that there has been an actual suppression or withholding of the evidence. No unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for. See generally 31A C.J.S. Evidence § 156(2); 29 Am.Jur.2d Evidence § 177 ('Such a presumption or inference arises, however, only when the spoliation or destruction [of evidence] was intentional, and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.').” Brewer, 72 F.3d at 334.

9 . "An inference is a conclusion reasonably drawn from facts established by evidence. A supposition, or conjecture, is a presumption based upon the theory that the thing or occurrence in question could have existed or happened.” Hurt’s Adm’r v. Louisville & N.R. Co., 298 Ky. 617, 183 S.W.2d 628 (1944).

10 . "[Circumstantial evidence may form the basis for a conviction so long as the evidence is sufficient to convince a reasonable jury of guilt.” Davis v. Commonwealth, 147 S.W.3d 709, 729 (Ky.2004).

11 . KRS 411.184 was held unconstitutional in part in Williams v. Wilson, 972 S.W.2d 260 (Ky.1998)

12 . Kinney v. Butcher, 131 S.W.3d 357, 358-59 (Ky.App.2004) (quoting Williams v. Wilson, 972 S.W.2d 260 (Ky.1998)).

13 . http://www.merriam-webster.com/ dictionary/authorize (last viewed October 6, 2011).

14 . http://www.merriam-webster.com/ dictionary/ratify (last viewed October 6, 2011).