Posted On: September 17, 2025
Preserve to Protect: Why Spoliation of Evidence Is a Serious Risk for HME and O&P Providers
As an insurance company with deep experience in the healthcare and medical equipment space, we’ve seen firsthand how the mishandling of potential evidence after an incident can lead to costly litigation, reputational damage, and unnecessary exposure to liability. One of the most overlooked risks in this area is spoliation of evidence—the destruction, alteration, or failure to preserve evidence that may be relevant in a legal case.
This issue is particularly important for Home Medical Equipment (HME) and Orthotics & Prosthetics (O&P) providers. When an incident occurs involving a piece of equipment—whether it’s an allegedly broken rollator or walker or a misfitting prosthetic or problematic component of a prosthetic—that item becomes potential evidence. How your business handles it can make or break your defense in future litigation.
What Is Spoliation of Evidence?
Spoliation occurs when evidence that could be used in a legal proceeding is lost, destroyed, or tampered with. Courts take this very seriously. In many states, if a jury believes evidence was intentionally discarded, they may be instructed to assume that the missing evidence would have been unfavorable to the party responsible—in this case, potentially your business.
This can lead to:
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Adverse jury instructions
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Larger settlements or judgments
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Loss of insurance coverage or increased premiums
Why It Matters for HME and O&P Providers
Claims for injury are often not reported to attorneys or insurers for 6–12 months. By that time, if the equipment has been thrown away or altered, it’s too late to recover it. That’s why preservation must begin immediately.
Here are key practices every HME and O&P provider should adopt:
Bag and Tag Everything
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Any item involved in an incident—durable medical equipment, prosthetics and replaced components, and all related items and delivery records etc.—should be bagged, tagged, and stored securely.
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Include documentation of the patient, the date, and the nature of the incident.
Take Photos
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Photograph the item in its damaged state.
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Capture the surrounding environment and any relevant documentation (e.g., manuals, packaging).
Document Thoroughly
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Record internal processes, delivery logs, technician notes, and patient interactions.
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Maintain a clear chain of custody for the item.
Don’t Throw It Away
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Delivery techs and staff should be trained not to discard damaged items or items alleged to have caused injury or damage.
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Even if the item seems insignificant, it could be crucial in defending against allegations.
Adopt a Liability Mindset
Every employee—from delivery technicians to administrative staff—should be trained to think with liability awareness. This means understanding that their actions can have legal consequences months or even years down the line.
Implement Liability Training
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Educate staff on the importance of evidence preservation.
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Create clear protocols for incident response and documentation.
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Regularly review and update procedures to stay compliant with state-specific laws.
The Legal Ramifications for Insurers
When evidence is lost, it doesn’t just affect your business—it affects us, your insurer. Courts may assume the worst: that the evidence was discarded to hide liability. This can lead to larger settlements, higher legal costs, and increased premiums for everyone involved.
By preserving evidence properly, you help us resolve your claim effectively and protect your coverage.
Final Thoughts
Spoliation of evidence is preventable. With the right mindset, training, and procedures, HME and O&P providers can safeguard themselves from unnecessary legal exposure. Remember: preserve now to protect later.
If you have questions about implementing liability protocols or need guidance on evidence preservation, reach out to your insurance representative. We’re here to help you stay protected.
VGM Insurance
