Evidence Retention

What happens at your facility when an incident or injury occurs? Some of the answers may seem obvious: you care for the injured participant or member, you notify your insurance company by completing and filing an incident report, and you follow up with the victim to make certain they are okay. These are important responses by you and your staff – they demonstrate your care and are a big part of the reason why people embrace the organization. Some of the other things that need to be done after such events may not be as self-evident but they are possibly crucial during the follow-up and life of a potential claim.

Retention of evidence can be a very significant factor in how a claim is settled and whether there is potential for subrogation from other parties, e.g., the owners and manufacturers of involved equipment and their insurers, owners of utilized premises and their insurers, or service providers and their insurers. Lack of retention can reduce the defense potential when the organization was not at fault.

If an incident occurs that causes injury, possible injury, or damage to property and involves a product, piece of equipment, or other item that may have physically failed, malfunctioned, broken, popped, etc., take that item out of service until a claims adjuster contacts you and explains what further actions you should take. If the item must be repaired and placed back into service, keep all replaced or repaired components and all records of or receipts for repair until the adjuster gives you further instructions. Failure to properly retain damaged evidence may jeopardize the claim, defeat the potential for subrogation, or create adverse legal implications, depending on the circumstances of the incident.

So what should you do when a piece of equipment breaks and causes injury to someone? After dealing with the person’s injuries and seeing to their well-being, you should…

  • Take photographs from different angles before moving the equipment or any parts/pieces; include some with a wide enough view to provide context.
  • Secure the equipment and any components that have been separated from it immediately.
    • Remove the equipment and all broken parts from the program area to a secure location
    • Establish a chain of custody (who, date / time, what was done) to preserve evidence integrity
    • Keep it all out of use until it is inspected by your insurance company’s investigator
    • After inspection by the investigator, repair the equipment. If such a delay is impractical, contact your insurer for authorization to repair. Keep all broken and replaced components and any bill or internal documentation of the repair work that was done for the investigator
    • At no time allow the equipment, any broken component, or any part of a broken component to leave the premises, especially with the injured party or a representative of that party
  • Take statements from the injured party and others who observed the accident – record only observed facts without conjecture, suspicion, or opinion.
    • These statements should accompany the incident report that you file with your insurance carrier
    • Other documentation important to the claim that should accompany the above includes the signed membership application, program registration, or guest pass waiver
  • Collect purchase order, installation, inspection, and maintenance records for the equipment involved. These records should not be altered in any way; they are part of the documentation trail that is needed for the investigation. The investigator will review these documents as part of the claim-handling process.
  • Save any security camera footage that documents the incident and/or area involved. It may provide valuable information for the investigator and claims staff who evaluate any potential claim filed by the injured party.

The most important thing to do following an incident is to provide appropriate care for all involved individuals. When all medical issues are addressed the equipment should be secured and statements should be taken from all involved individuals and witnesses. Then necessary reports can be completed, ancillary items collected, and your insurance carrier notified. Your insurer will provide guidance and assistance with any further steps. You should, of course, follow-up with any injured party to show your concern.

The above information is just as important when there is damage to property without injury – photo documentation, preventing evidence damage or spoilage, etc. assist in the adjustment of the claim and preserve subrogation rights.