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As provided for under the common-law doctrine of spoliation

The Facts:

A medical malpractice action to recover damages for the birth injury sustained by an infant was commenced by plaintiff, the mother of the injured infant, against, among others, the defendant Hospital Center. Plaintiff alleges that, inter alia, as a result of the negligence, carelessness, and recklessness of defendants, plaintiff’s infant was born prematurely and thereby suffered severe and permanent brain injury, including cerebral palsy, spastic quadriplegia, gastroesophageal reflux disease, and cognitive and speech impairments.
In December 2004, before commencing the action, plaintiff’s attorney requested the Hospital to provide him with the complete medical file for both plaintiff and her infant from July 1997 to December 2004. In July 2006, after the commencement of the action, plaintiff’s attorney specifically requested that the Queens Hospital provide him with, among other things, the fetal monitoring strips for 19 July 1997. On 9 November 2006, after plaintiff’s counsel made several attempts to secure the Hospital’s compliance with his request, the Hospital informed plaintiff’s attorney that the fetal monitoring strips he had requested no longer existed. Plaintiff now moved to strike the Hospital’s answer due to spoliation of evidence.

On 22 October 2008, the Supreme Court, Westchester County, granted plaintiff’s motion to strike its answer for spoliation of evidence. Defendants appeal from the said order.

The Ruling:

As provided for under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party of the ability to prove its claim, the responsible party may be sanctioned by the striking of its pleading. However, a less severe sanction is appropriate where the absence of the missing evidence does not deprive the moving party of the ability to establish his or her case. The determination of a sanction for spoliation is within the broad discretion of the court.

Here, The Staten Island plaintiff did not clearly establish that the Hospital negligently lost or intentionally destroyed the subject fetal heart monitoring data for 19 July 1997, the infant’s date of birth. The record fails to rule out the possibility that the central monitoring computer system utilized by the Hospital in its labor and delivery unit to electronically store fetal heart data onto an optical disk was properly operating, or the possibility that it malfunctioned on 19 July 1997, due to no fault of any of the parties involved in this action, and resulting in no fetal heart data being recorded or stored for that date. Nor did the plaintiff establish that the unavailability of the fetal heart monitoring data fatally compromised her ability to prosecute the instant action.
Thus, since plaintiff failed to clearly establish that the Hospital negligently lost or intentionally destroyed the material, the plaintiff is entitled only to the sanction of an adverse inference charge at trial with respect to the subject fetal heart monitoring data, as against the Hospital. Moreover, plaintiff failed to show that the alleged spoliation left her prejudicially bereft of the means to prosecute the action against the Hospital.

In sum, the Supreme Court improvidently exercised its discretion in striking the Hospital’s answer and, instead, should have imposed the lesser sanction of an adverse inference charge at trial with respect to the subject fetal heart monitoring data. Accordingly, the appeal by the defendants is dismissed as abandoned; the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof granting the plaintiff’s motion to strike the answer of defendant Hospital Center on the ground of spoliation of evidence, and substituting therefor a provision granting plaintiff’s motion to the extent of directing that an adverse inference charge be given at trial with respect to the fetal monitoring data for 19 July 1997, as against defendant Hospital Center, and otherwise denying the motion; as so modified, the order is affirmed insofar as appealed from by defendant Hospital Center, without costs or disbursements.

For every injury sustained as a result of the negligence of another, there exists a right to recover damages. If you find yourself in this situation and you want to know more, contact us at Stephen Bilkis & Associates. Learn of the legal actions you may make by consulting with our Queens Medical Malpractice Lawyers like our Queens Birth Injury Lawyers, and the like.

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